Josefina V Ballesteros v. Michael J. Astrue, No. 2:2009cv06372 - Document 23 (C.D. Cal. 2010)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal: Consistent with the foregoing, and pursuant to sentence four of 42 U.S.C. § 405(g), IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. (dhl)
Download PDF
<![CDATA[
Josefina V Ballesteros v. Michael J. Astrue Doc. 23 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 JOSEFINA V. BALLESTEROS, 11 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 09-06372 SS MEMORANDUM DECISION AND ORDER 16 17 I. 18 INTRODUCTION 19 20 Plaintiff Josefina V. Ballesteros (“Plaintiff”) brings this action 21 seeking to overturn the decision of the Commissioner of the Social 22 Security Administration (hereinafter the “Commissioner” or the “Agency”) 23 denying her application for Disability Insurance Benefits (“DIB”). The 24 parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction 25 of the undersigned United States Magistrate Judge. For the reasons 26 stated below, the decision of the Agency is REVERSED and REMANDED for 27 further proceedings. 28 Dockets.Justia.com 1 II. 2 PROCEDURAL HISTORY 3 4 Plaintiff filed an application for DIB on August 2, 2004. 5 (Administrative Record (“AR”) 27). 6 she is disabled due to pain and weakness as a result of chemotherapy to 7 treat her breast cancer. 8 that she is also disabled due to neck pain from a bulging disc between 9 her C4-5 annulus, shoulder pain from a tear in her biceps and stress. 10 (AR 72, 76). 11 8, 2003. Plaintiff originally alleged that (AR 52, 62). Plaintiff subsequently alleged Plaintiff noted that her disability onset date was July (AR 52). 12 13 The Agency denied Plaintiff’s claims for benefits initially and 14 upon reconsideration. 15 Administrative Law Judge (“ALJ”) Sherwin Biesman conducted a hearing to 16 review Plaintiff’s claims. (AR 280-96). Plaintiff, who was represented 17 by counsel, testified. (AR 282-96). 18 6, 2006. Plaintiff sought review of the ALJ’s decision 19 before the Appeals Council. 20 Council denied review, making the ALJ’s decision the final decision of 21 the Commissioner. 22 Court, Case Number CV 06-07943 VAP (SS), on December 14, 2006. (AR 12-16). (See AR 29-33, 36-40). (AR 7). (AR 4-6). On February 21, 2006, The ALJ denied benefits on July On October 12, 2006, the Appeals Plaintiff commenced an action in this 23 24 The undersigned recommended that the matter be remanded for further 25 administrative proceedings on March 3, 2008, directing the ALJ to re- 26 evaluate the opinions of the treating physician and offer specific and 27 legitimate 28 Plaintiff’s credibility and offer clear and convincing reasons if reasons if he intended 2 to reject them, re-evaluate 1 rejecting 2 determination with substantial evidence in the record. 3 March 25, 2008, Judge Virginia A. Phillips adopted this recommendation 4 and the case was remanded. it and to re-evaluate Plaintiff’s RFC and support his (AR 349). On (AR 375). 5 6 On October 30, 2008, a second administrative hearing was held with 7 new evidence. (AR 414-440). On May 15, 2009, the ALJ issued a decision 8 finding Plaintiff not disabled. 9 instant action on September 1, 2009. (AR 303-309). Plaintiff filed the 10 11 III. 12 FACTUAL BACKGROUND 13 14 A. Plaintiff’s Medical History 15 16 Plaintiff has the following impairments: history of breast cancer 17 currently in remission, lumbar disc disease, neck pain secondary to a 18 cervical disc bulge and left shoulder pain secondary to a rotator cuff 19 tear. 20 disorder and depression. (AR 305-306). Plaintiff also has a history of chronic anxiety (AR 316). 21 22 Dr. Robert Finkelstein, Plaintiff’s primary doctor for thirty-one 23 years, (AR 286), wrote the Agency a letter on February 10, 2006, stating 24 that he believed Plaintiff’s severe anxiety disorder and depression 25 rendered her “fully incapacitated and unable to perform any type of 26 employment, part time or full time.” 27 that he had treated Plaintiff for these symptoms. 28 3 (AR 256). Dr. Finkelstein stated (Id.). Plaintiff 1 received prescriptions for Ativan, Lorazepam, Paxil and Wellbutrin, 2 which she took to treat her anxiety and depression. (AR 257-66). 3 4 B. New Evidence 5 6 The District Court directed the ALJ to further develop the record 7 by retaining the services of a consultative examiner to offer her 8 opinions after an examination of Plaintiff. 9 underwent a state agency consultative (AR 373). psychological Plaintiff examination. 10 Additionally, after the remand, Facey Medical Group submitted updated 11 evidence through July 2008. Two medical experts and Plaintiff testified 12 at the hearing. Lastly, Plaintiff submitted a letter from Judy Sturman, 13 her licensed clinical social worker. 14 diplomate in clinical social work and a master of social work. 15 311). Ms. Sturman is a board certified (AR 16 17 1. Consultative Examination 18 19 On December 29, 2008, Dr. Evelyn Garcia performed a psychological 20 evaluation at the request of the Department of Social Services. 21 403). 22 shopping, making meals and doing household chores due to her pain, 23 anxiety and depression, though she could dress, bathe and walk on her 24 own. 25 Plaintiff’s money. 26 anxious and that Plaintiff became teary-eyed during certain tasks. 27 (Id.). 28 span were mildly impaired but she was able to do various tasks. (AR Plaintiff reported to Dr. Garcia that she needed help with (AR 406). Her husband (Id.). drove for long trips and managed Dr. Garcia noted that Plaintiff’s mood was Dr. Garcia opined that Plaintiff’s concentration and attention 4 Based 1 on test results and clinical data, Dr. Garcia opined that Plaintiff’s 2 overall cognitive ability fell within the borderline range and that 3 diagnoses included major depressive disorder and anxiety disorder. (AR 4 408). Dr. Garcia noted difficulty with daily tasks due to chronic pain, 5 anxiety and depression. 6 be able to understand, remember and carry out short and simplistic 7 instructions and that Plaintiff has a mild inability to understand, 8 remember and carry out detailed instructions but could make simplistic 9 work-related decisions. (Id.). Dr. Garcia opined that Plaintiff would (Id.). Dr. Garcia recommended that Plaintiff 10 continue psychological treatment in order to help her overcome her 11 depression and anxiety. (AR 409). 12 13 2. Updated Records From Treating Physician 14 15 Updated records from Dr. Finkelstein’s medical group, Facey Medical 16 Group, revealed that Plaintiff still experienced recurring problems with 17 depression and anxiety disorder. In April 2008, Plaintiff’s depression 18 was under very good control and she asked to discontinue her medication. 19 (AR 327). 20 2008 appointment, her doctor reported that her depression with anxiety 21 disorder was still under excellent control but Plaintiff remained on 22 Ativan and Wellbutrin. 23 at her July 17, 2008 appointment to increase her Wellbutrin dosage again 24 for her anxiety. 25 in July 2008. 26 Group reports that Plaintiff still suffered from depression and anxiety 27 and was on medication (Wellbutrin and Ativan) as of July 2008. The doctor lowered her dosage. (AR 317). (AR 313-315). (AR 313-315). (AR 327). At her June 27, However, Plaintiff was then advised She was reportedly seeing a therapist The most recent report from Facey Medical 28 5 (Id.). 1 3. Testimony of Medical Experts 2 3 Glenn Griffin, M.D., an impartial medical expert, testified at 4 trial. He stated that he did not review the Facey Medical Group 5 records. 6 required further psychological assessment to determine how severe. 7 (Id.). (AR 419). He believed Plaintiff had a severe condition and 8 9 Reuben Beezy, the second medical expert, did not comment on 10 Plaintiff’s psychiatric manifestations. 11 Plaintiff had glaucoma, neck pain with radiation into the arms, shoulder 12 pain secondary to a rotator cuff tear, which was confirmed by an MRI, 13 back pain and benign postural vertigo. 14 without explanation that none of Plaintiff’s conditions met a listing 15 but that he thought Plaintiff was sedentary considering her neck and 16 back problems. (AR 422). (AR 422-423). He testified that Dr. Beezy opined (AR 422). 17 18 4. Plaintiff’s Testimony 19 20 Plaintiff testified that she was taking Lorazepam, Wellbutrin, 21 Actonel and Aspirin. 22 of sedentary work due to anxiety and depression. 23 testified that if she did chores, they took her a long time because she 24 did them slowly. 25 cooking so she did a little each day because she got too tired and 26 anxious. 27 every day, whether at home or in public. 28 she went to the grocery store once in awhile when she knew there would (AR 423). (AR 429). (AR 430). She testified that she was not capable (AR 424). She Plaintiff testified that she split up her Plaintiff testified that she had anxiety attacks 6 (AR 430-431). She testified 1 be few people around. 2 receiving treatment from a psychotherapist for four years for depression 3 and anxiety. (AR 432). Plaintiff testified that she had been (AR 432). 4 5 5. Statement From Plaintiff’s Clinical Social Worker 6 7 Judy Sturman, MSW, LCSW, submitted a letter dated October 27, 2008, 8 stating that Plaintiff had been in treatment with her since 2005 and 9 opining that Plaintiff’s depression, anxiety and panic disorder rendered 10 her unable to work. (AR 311). 11 depressed most of the day, often had either hypersomnia or insomnia and 12 usually felt fatigued. 13 that Plaintiff’s panic had been severe enough that she was unable to 14 leave her house for several weeks at a time. (Id.). Ms. Sturman opined 15 that Plaintiff would continue to have these episodes, which involve 16 dizziness, chest 17 sweating. Because of these attacks, Plaintiff was unable to sleep, 18 focus or concentrate. (Id.). pain, rapid Ms. Sturman wrote that Plaintiff was She noted Plaintiff’s weight gain and heartbeat, shortness of breath and (Id.). 19 6. 20 Vocational Expert 21 22 A vocational expert departed from the hearing early and was unable 23 to testify due to a scheduling conflict. 24 // 25 // 26 // 27 // 28 // 7 (AR 426). 1 IV. 2 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 3 4 To qualify for disability benefits, a claimant must demonstrate 5 a medically determinable physical or mental impairment that prevents him 6 from engaging in substantial gainful activity1 and that is expected to 7 result in death or to last for a continuous period of at least twelve 8 months. 9 42 U.S.C. § 423(d)(1)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant 10 incapable of performing the work he previously performed and incapable 11 of performing any other substantial gainful employment that exists in 12 the national economy. 13 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 14 To decide if a claimant is entitled to benefits, an ALJ conducts 15 16 a five-step inquiry. 17 follows: 20 C.F.R. §§ 404.1520, 416.920. The steps are as 18 (1) 19 Is the claimant presently engaged in substantial gainful 20 activity? If so, the claimant is found not disabled. 21 If not, proceed to step two. 22 23 (2) Is the claimant’s impairment 24 claimant is found not disabled. 25 three. severe? If not, the If so, proceed to step 26 27 28 1 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. 8 (3) 1 Does the claimant’s impairment meet or equal one of a 2 list of specific impairments described in 20 C.F.R. Part 3 404, Subpart P, Appendix 1? 4 found disabled. If so, the claimant is If not, proceed to step four. 5 (4) 6 Is the claimant capable of performing her past work? 7 so, the claimant is found not disabled. 8 to step five. If If not, proceed 9 (5) 10 Is the claimant able to do any other work? 11 claimant is found disabled. 12 found not disabled. If not, the If so, the claimant is 13 14 Tackett, 180 F.3d at 1098-99; see also 20 C.F.R. §§ 404.1520(b)-(g)(1), 15 416.920(b)-(g)(1); Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th 16 Cir. 2001) (citations omitted). 17 The claimant has the burden of proof at steps one through four, and 18 19 the Commissioner has the burden of proof at step five. Bustamante, 262 20 F.3d at 953-54. 21 establishing an inability to perform past work, the Commissioner must 22 show that the claimant can perform some other work that exists in 23 “significant numbers” in the national economy, taking into account the 24 claimant’s residual functional capacity (“RFC”),2 age, education, and 25 work experience. If, at step four, the claimant meets his burden of Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 26 2 27 28 Residual functional capacity is “the most [one] can still do despite [one’s] limitations” and represents an assessment “based on all the relevant evidence in [one’s] case record.” 20 C.F.R. §§ 404.1545(a), 416.945(a). 9 1 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 2 do so by the testimony of a VE or by reference to the Medical-Vocational 3 Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 4 (commonly known as “the Grids”). 5 1162 (9th Cir. 2001). 6 related) and nonexertional limitations, the Grids are inapplicable and 7 the ALJ must take the testimony of a VE. 8 869 (9th Cir. 2000). The Commissioner may Osenbrock v. Apfel, 240 F.3d 1157, When a claimant has both exertional (strength- Moore v. Apfel, 216 F.3d 864, 9 10 V. 11 THE ALJ’S DECISION 12 13 The ALJ employed four of the five steps involved in the five-step 14 sequential evaluation process discussed above. 15 determined 16 activity since the alleged onset of disability. (AR 305). At step two, 17 the ALJ found that Plaintiff’s history of breast cancer, currently in 18 remission, lumbar disc disease, neck pain secondary to a cervical disc 19 bulge and left shoulder pain secondary to a rotator cuff tear were 20 severe impairments. 21 anxiety and depressive disorders were nonsevere. (Id.). At step three, 22 the ALJ ascertained that Plaintiff’s physical impairments did not meet 23 or equal a listing. that Plaintiff had (AR 306). not engaged in At step one, the ALJ substantial gainful However, the ALJ found that Plaintiff’s (Id.). 24 25 At step four, the ALJ found that Plaintiff’s medically determinable 26 impairments 27 symptoms, but that Plaintiff’s statements concerning the intensity, 28 persistence and limiting effects of these symptoms were not entirely could reasonably be expected 10 to produce the alleged 1 credible. 2 perform “the exertional demands of medium work, or work which requires 3 maximum lifting of fifty pounds and frequent lifting of up to twenty- 4 five pounds.” 5 Plaintiff’s neck and shoulder pain, she should avoid repetitive neck or 6 shoulder motions and would find using the arms overhead difficult. 7 307). 8 past relevant work. 9 was not disabled and did not proceed to step five. (AR 307). The ALJ assessed that Plaintiff had the RFC to (AR 306). Additionally, the ALJ found that in light of (AR The ALJ determined that Plaintiff was capable of performing her (Id.). Accordingly, the ALJ found that Plaintiff (Id.). 10 11 VI. 12 STANDARD OF REVIEW 13 Under 14 42 U.S.C. § 405(g), a district court may review the 15 Commissioner’s decision to deny benefits. The court may set aside the 16 Commissioner’s decision when the ALJ’s findings are based on legal error 17 or are not supported by substantial evidence in the record as a whole. 18 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 19 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 20 21 “Substantial evidence is more than a scintilla, but less than a 22 preponderance.” 23 which a reasonable person might accept as adequate to support a 24 conclusion.” 25 a finding, the court must “‘consider the record as a whole, weighing 26 both 27 [Commissioner’s] conclusion.’” Aukland, 257 F.3d at 1035 (quoting Penny 28 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). evidence Reddick, 157 F.3d at 720. Id. It is “relevant evidence To determine whether substantial evidence supports that supports and evidence 11 that detracts from the If the evidence can 1 reasonably support either affirming or reversing that conclusion, the 2 court may not substitute its judgment for that of the Commissioner. 3 Reddick, 157 F.3d at 720-21. 4 5 VII. 6 DISCUSSION 7 8 9 Plaintiff contends that the Commissioner’s decision should be overturned for four reasons. First, Plaintiff claims that the ALJ 10 improperly assessed Plaintiff’s credibility. (Memorandum in Support of 11 Plaintiff’s Complaint (“Complaint Memo”) at 4-7). 12 that the ALJ erred in determining that depression and anxiety were not 13 severe impairments. 14 ALJ did not properly evaluate the assessments and opinions of treating 15 and examining physicians. 16 the ALJ erred in not considering the combined effects of all of 17 Plaintiff’s impairments in assessing her RFC. 18 Court agrees with some of Plaintiff’s contentions and finds that the 19 ALJ’s decision should be reversed and remanded. (Id. at 8-10). Second, she asserts Third, Plaintiff claims that the (Id. at 10-12). Finally, she asserts that (Id. at 12-15). The 20 21 22 A. The ALJ Failed To Properly Assess Plaintiff’s Mental Health Impairment At Step Two Of The Evaluation Process 23 24 By its own terms, the evaluation at step two is a de minimis test 25 intended to weed out the most minor of impairments. 26 Yuckert, 482 U.S. 137, 153-54, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); 27 Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001) (describing the 28 step-two inquiry as a de minimis screening device to dispose of 12 See Bowen v. 1 groundless claims) (quoting Smolen, 80 F.3d at 1290). An impairment or 2 combination of impairments can be found “not severe” only if the 3 evidence establishes “a slight abnormality that has no more than a 4 minimal effect on [the claimant’s] ability to work.” 5 at 1290 (internal quotations and citations omitted). Smolen, 80 F.3d 6 7 The ALJ here applied more than a de minimis test when he determined 8 that Plaintiff’s mental impairment was not severe. 9 presented records of her treatment for Although Plaintiff “severe anxiety disorder 10 associated with depression,” (AR 256), the ALJ disregarded this and much 11 of the other evidence establishing Plaintiff’s mental impairments. 12 13 1. The ALJ Selectively Reviewed The Evidence 14 The ALJ selectively reviewed the evidence regarding Plaintiff’s 15 16 mental impairments. The ALJ cannot “reach a conclusion first, and then 17 attempt to justify it by ignoring competent evidence in the record that 18 suggests an opposite result.” 19 56 (9th Cir. 1984). 20 (9th Cir. 1998) (impermissible for ALJ to develop evidentiary basis by 21 “not fully accounting for the context of materials or all parts of the 22 testimony and reports”). Gallant v. Heckler, 753 F.2d 1450, 1455- See also Reddick v. Chater, 157 F.3d 715, 722-23 23 24 The ALJ acknowledged the record of Plaintiff’s psychological 25 treatment, but did not address material evidence. For instance, the ALJ 26 focused on the fact that Plaintiff’s symptoms were well controlled as 27 long 28 “[e]vidence of poor compliance.” (AR 308). The ALJ focused on a August as Plaintiff was compliant 13 and then noted that there was 1 3, 2005 office note that stated that Plaintiff was not taking the Paxil 2 prescribed by Dr. Finklestein. 3 noted that “on July 1, 2008, Dr. Finkelstein noted that [Plaintiff] was 4 not taking Wellbutrin as prescribed.” 5 This Court disagrees with the finding that Plaintiff was not compliant 6 with a prescribed course of treatment. 7 used 8 recommended treatment to combat her neck and shoulder pain. 9 apparently was not taking her medications on two occasions over a five- 10 year period does not provide substantial evidence of a lack of severity 11 of her impairment. several forms of (Id., citing AR 265). prescribed The ALJ further (Id., citing “new medicals”). As discussed above, Plaintiff medication and other physicianThat she 12 13 The ALJ noted that “[t]he only detailed and objective . . . 14 examinations comes from the two consultative psychological consultative 15 examinations,” Dr. Colonna’s March 28, 2006 report and Dr. Garcia’s 16 December 29, 2008 report. 17 ALJ summarized Dr. Colonna’s and Dr. Garcia’s opinions and concluded 18 that Plaintiff had a “[m]oderately severe but not disabling level of 19 depression and anxiety.” 20 considered the evidence in his review of Dr. Colonna’s and Dr. Garcia’s 21 reports. 22 her a Global Assessment of Functioning (“GAF”) score of 65.4 (AR 308, citing AR 269-276, 403-443). (Id.). The However, the ALJ again selectively Dr. Colonna diagnosed Plaintiff with dysthymia3 and assigned (AR 14). 23 24 25 26 3 “Dysthymia is a chronic type of depression in which a person’s moods are regularly low. However, it is not as extreme as other types of depression.” U.S. National Library of Medicine and National Institutes of Health, MedlinePlus Medical Encyclopedia, http://www.nlm.nih.gov/medlineplus/ency/article/000918.htm. 27 4 28 mild GAF ratings range from 0 to 100. symptoms (e.g., depressed mood 14 A rating of 61-70 denotes some and mild insomnia) or some 1 The ALJ further noted Dr. Colonna’s finding that Plaintiff had only 2 “mild” limitations in the ability to understand, remember and carry out 3 detailed instructions. 4 primary diagnosis of dysthymia, but conceded that Plaintiff “may meet 5 the diagnostic criteria for anxiety disorder.” 6 also found an indication of “moderate anxiety, depression, fatigue, 7 exhaustion, [and] insomnia.” 8 conclusion that Plaintiff did, in fact, have a severe mental impairment, 9 at least for purposes of the step two evaluation. (Id.). Dr. Colonna did assign Plaintiff a (Id.). (AR 274). Dr. Colonna These findings fully support a 10 11 12 2. The Evidence Supports A Finding Of A Severe Mental Impairment At Step Two 13 14 Dr. Finkelstein’s records show that Plaintiff repeatedly complained 15 of anxiety and depression. 16 When the Lorazepam proved ineffective to treat her depression, Dr. 17 Finkelstein 18 Finkelstein found Plaintiff “fully incapacitated” as a result of her 19 anxiety disorder and depression. 20 Finkelstein’s opinion was not entitled to much weight in evaluating 21 whether Plaintiff was disabled at step four or five, this evidence was 22 certainly sufficient to satisfy the de minimis step two evaluation, 23 particularly when combined with clinical psychologist Rosa Colonna’s 24 diagnosis of dysthymia and a GAF of 65. changed Dr. Finkelstein treated her with Lorazepam. Plaintiff’s medication to Wellbutrin. Dr. Even if the ALJ found that Dr. As such, the ALJ’s conclusion 25 26 27 28 difficulty in social, occupational or school functioning (e.g., occasional truancy or theft within the household), but generally functioning pretty well and maintaining some meaningful interpersonal relationships. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed., text rev. 2000). 15 1 at step two, that Plaintiff’s mental impairment was not severe, was 2 error. See 20 C.F.R. § 416.920a(b)(1). 3 4 On August 3, 2004, the Agency conducted a face-to-face interview 5 with Plaintiff, in which the interviewer noted that Plaintiff’s “eyes 6 were constantly tearing and red” and that “she appeared to be tired and 7 depressed.” 8 apparently Dr. Finkelstein, noted that Plaintiff “has been depressed and 9 quite anxious and actually is crying in the office.” (AR 60). On June 30, 2005, an unidentified doctor, (AR 266). On 10 August 3, 2005, Dr. Sheldon Davidson, Plaintiff’s oncologist, noted that 11 “she still has depression and crying spells.” 12 2005, Dr. Finkelstein noted that Plaintiff was feeling “quite anxious.” 13 (AR 264). 14 and depression.” (AR 263). On November 17, 2005, Dr. Finkelstein noted 15 “[s]ome improvement in depression and anxiety.” 16 5, 2005, Dr. Albert Dekker, an oncologist, noted that Plaintiff was 17 “very emotional.” (AR 258). On January 10, 2006, Dr. Finkelstein noted 18 that the Wellbutrin helped Plaintiff to feel “much less anxious.” 19 257). (AR 265). On August 8, On September 6, 2005, he diagnosed her with “chronic anxiety (AR 261). On December (AR 20 21 Moreover, the ALJ failed to consider the recent psychological 22 consultation performed for the Department of Social Services. 23 December 24 evaluation 25 Plaintiff reported to Dr. Garcia that she needed help with shopping, 26 making meals and doing household chores due to her pain, anxiety and 27 depression, though she could dress, bathe and walk on her own. 28 406). 29, at 2008, Dr. Evelyn the request of Garcia the performed Department of a On psychological Social Services. (AR Her husband drove for long trips and managed Plaintiff’s money. 16 1 (Id.). Dr. Garcia noted that Plaintiff’s mood was anxious and that 2 Plaintiff became teary-eyed during certain tasks. 3 opined that Plaintiff’s concentration and attention span were mildly 4 impaired but she was able to do the tasks at hand. 5 results and clinical data, Dr. Garcia opined that Plaintiff’s overall 6 cognitive ability fell within the borderline range and that diagnoses 7 included major depressive disorder and anxiety disorder. (AR 408). Dr. 8 Garcia noted difficulty with daily tasks due to chronic pain, anxiety 9 and depression. (Id.). (Id.). Dr. Garcia Based on test Dr. Garcia opined that Plaintiff would be able 10 to understand, remember and carry out short and simplistic instructions 11 and that Plaintiff has a mild inability to understand, remember and 12 carry out detailed instructions but could make simplistic work-related 13 decisions. 14 psychological treatment in order to help her overcome her depression and 15 anxiety. 16 allegations of disability due to anxiety and depression. (Id.). Dr. Garcia recommended that Plaintiff continue (AR 409). Substantial evidence supports Plaintiff’s 17 18 19 3. The ALJ Failed To Employ The Agency’s Regulations For The Evaluation Of Mental Impairments 20 21 Before remand, the ALJ failed to follow the Agency’s own 22 regulations for the evaluation of mental impairments. 23 The ALJ again failed to follow these regulations. 24 evidence of a mental impairment that allegedly prevents the plaintiff 25 from working, the Agency has supplemented the five-step sequential 26 27 28 17 (AR 357-358). Where there is 1 evaluation process with additional regulations.5 Maier v. Comm’r of the 2 Soc. Sec. Admin., 154 F.3d 913, 914-15 (9th Cir. 1998) (citing 20 C.F.R. 3 § 416.920a)(per curiam). 4 absence of certain medical findings relevant to the plaintiff’s ability 5 to work. 6 establishes these medical findings, the ALJ must rate the degree of 7 functional loss resulting from the impairment by considering four areas 8 of function: (a) activities of daily living; (b) social functioning; (c) 9 concentration, persistence, or pace; and (d) episodes of decompensation. 10 20 C.F.R. § 416.920a(c)(2)-(4). Third, after rating the degree of loss, 11 the ALJ must determine whether the claimant has a severe mental 12 impairment. 13 is found to be severe, the ALJ must determine if it meets or equals a 14 listing in 20 C.F.R. Part 404, Subpart P, Appendix 1. 15 416.920a(d)(2). 16 assess the plaintiff’s RFC, and the ALJ’s decision “must incorporate the 17 pertinent findings and conclusions” regarding the plaintiff’s mental 18 impairment, including “a specific finding as to the degree of limitation 19 in each of the functional areas described in [§ 416.920a(c)(3)].” 20 C.F.R. § 416.920a(d)(3), (e)(2). First, the ALJ must determine the presence or 20 C.F.R. § 416.920a(b)(1). 20 C.F.R. § 416.920a(d). Second, when the plaintiff Fourth, when a mental impairment 20 C.F.R. § Finally, if a listing is not met, the ALJ must then 20 21 22 23 24 25 26 27 28 5 These additional steps are intended to assist the ALJ in determining the severity of mental impairments at steps two and three. The mental RFC assessment used at steps four and five of the evaluation process, on the other hand, require a more detailed assessment. Social Security Ruling 96-8P, 1996 WL 374184 at * 4. 18 1 The regulations describe an impairment as follows: 2 3 A physical or mental impairment must result from anatomical, 4 physiological, or psychological abnormalities which can be 5 shown 6 diagnostic techniques. 7 be established by medical evidence consisting of signs, 8 symptoms, 9 plaintiff’s] statements of symptoms. by medically and acceptable clinical and laboratory A physical or mental impairment must laboratory findings, not only by [a 10 11 20 C.F.R. § 416.908; see also Ukolov v. Barnhart, 420 F.3d 1002, 1005 12 (9th Cir. 2005) (noting that the existence of a medically determinable 13 physical or mental impairment may only be established with objective 14 medical findings) (citing Social Security Ruling 96-4p, 1996 WL 374187 15 at *1-2). 16 Here, the ALJ erred by finding that Plaintiff’s mental impairment 17 18 was not severe at step two. Furthermore, the ALJ should have evaluated 19 Plaintiff’s mental impairment by applying the agency’s regulations, as 20 described above. As such, remand is required to remedy these defects. 21 22 B. The ALJ Did Not Consider The Combined Effect Of Plaintiff’s 23 Physical and Mental 24 Function Capacity Impairments In Determining Her Residual 25 26 The ALJ first determined that Plaintiff had only slight mental 27 impairments that would not interfere with her ability to do “simple and 28 some detailed work or worklike tasks.” 19 (AR 306). He then addressed 1 Plaintiff’s RFC. The ALJ determined that Plaintiff, a nearly-sixty-year 2 old woman with severe neck and shoulder pain, can perform medium work, 3 which requires maximum lifting of fifty pounds and frequent lifting of 4 up to twenty-five pounds. 5 and shoulder pain, the ALJ also found that Plaintiff should avoid 6 repetitive neck or shoulder motions and would find using the arms 7 overhead difficult. (AR 306-307). In light of Plaintiff’s neck (AR 307). 8 9 Although the ALJ claimed that “[i]n making this finding, [he] 10 considered all symptoms,” the ALJ did not sufficiently weigh Plaintiff’s 11 mental impairments in his discussion. 12 F.3d at 1158 (“‘Important here, at the step two inquiry, is the 13 requirement that the ALJ must consider the combined effect of all of the 14 claimant’s impairments on h[is] ability to function, without regard to 15 whether each alone was sufficiently severe.’”) (quoting Smolen, 80 F.3d 16 at 1290); 20 C.F.R. §§ 404.1523, 416.923. 17 correct that Plaintiff’s mental impairments were non-severe, he was 18 still required to consider the limitations arising from those non-severe 19 impairments in determining her RFC. 20 will consider all of your medically determinable impairments . . . 21 including 22 “severe.”). 23 problems 24 instructions, he completely disregarded substantial evidence in the 25 record that Plaintiff suffers from frequent and disabling anxiety 26 attacks. your medically This was error. See Edlund, 253 Even if the ALJ had been 20 C.F.R. § 404.1545(a)(2) (“[W]e determinable impairments that are not While the ALJ did take into account Plaintiff’s mild understanding, remembering 27 28 20 and carrying out complex 1 In addition, the ALJ must consider each of Plaintiff’s individual 2 physical impairments. Here, the ALJ did not address the joint pain that 3 Plaintiff experienced while on the course of aromatase inhibitors in the 4 months following her chemotherapy. 5 Plaintiff’s report that she does “very little lifting” and that “because 6 of the pain and weakness,” anything she carries “must be light in 7 weight.” 8 that 9 consultative RFC assessment indicated that Plaintiff could handle medium (AR 63). Plaintiff can The ALJ also did not address This evidence contradicts the ALJ’s determination perform medium work. Although the Agency’s 10 work, (AR 244-54), this opinion appears to be conclusory. Regardless, 11 the ALJ did not refer to it in his decision. 12 also requires remand so that the ALJ can make a proper determination of 13 Plaintiff’s RFC in light of the entire record. Accordingly, this issue 14 15 VIII. 16 CONCLUSION 17 Upon remand, the ALJ must evaluate Plaintiff’s mental impairment 18 19 at step two, following the agency’s own regulations for mental 20 impairments. 21 support his determination with substantial evidence in the record. 22 making this determination, the ALJ must consider the combined effects 23 of all of Plaintiff’s impairments –- physical and mental –- and all of 24 the record evidence in making his RFC determination. 25 call a vocational expert to testify, as Plaintiff suffers from both 26 exertional and non-exertional impairments. 27 five-step analysis so that this Court has adequate information in 28 reviewing any decision for harmless error. In addition, the ALJ must re-evaluate Plaintiff’s RFC and 21 In The ALJ should The ALJ must complete the 1 Consistent with the foregoing, and pursuant to sentence four of 42 2 U.S.C. § 405(g),6 IT IS ORDERED that judgment be entered REVERSING the 3 decision of the Commissioner and REMANDING this matter for further 4 proceedings consistent with this decision. 5 the Clerk of the Court serve copies of this Order and the Judgment on 6 counsel for both parties. IT IS FURTHER ORDERED that 7 8 DATED: August 30, 2010 9 10 _____/S/________________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 This sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 22
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
