Stuart Boyar v. Michael J Astrue, No. 2:2011cv02414 - Document 15 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton, This matter will be remanded for further hearing consistent with this Memorandum Opinion. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 STUART BOYAR, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 11-02414-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have 21 consented that the case may be handled by the Magistrate Judge. The 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the Administrative 24 Record ( AR ) before the Commissioner. The parties have filed the 25 Joint Stipulation ( JS ), and the Commissioner has filed the certified 26 AR. 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) erred in 1 failing 2 physician; and 3 2. give appropriate weight to the treating Whether the ALJ erred in evaluating Plaintiff s severe 4 5 to impairments. (JS at 2.) 6 7 This Memorandum Opinion will constitute the Court s findings of 8 fact and conclusions of law. After reviewing the matter, the Court 9 concludes 10 that for the reasons set forth, the decision of the Commissioner must be reversed and the matter remanded. 11 12 I 13 THE ALJ S DETERMINATION THAT PLAINTIFF DOES NOT SUFFER 14 A SEVERE IMPAIRMENT IS NOT BASED ON SUBSTANTIAL EVIDENCE 15 Plaintiff filed an application for Disability Insurance Benefits 16 under Title II of the Social Security Act, alleging an onset of 17 disability as of January 3, 1997 (AR 98), due to both physical and 18 mental symptoms, including a self-described increasing severity of 19 depression, and a lack of concentration, extreme irritability, extreme 20 anxiety, and fatigue. (AR 133.) 21 Following a hearing before an ALJ (AR 42-54), an unfavorable 22 decision was issued on January 27, 2009. (AR 27-35.) 23 standard 24 Plaintiff s case ended at Step Two, when the ALJ found that Plaintiff 25 did not have a severe impairment or combination of impairments. (AR 26 32; see 20 C.F.R. § 404.1521.) 27 28 In five-step support of sequential his evaluation disability claim process Plaintiff Utilizing the (AR 31-32), tendered the Treatment Report of his long-time psychiatrist, Dr. Schachter. (AR 2 1 270-271.) In that document Dr. Schachter indicated that he has 2 treated Plaintiff in psychotherapy for over a decade. Dr. Schachter 3 began long-standing 4 depression for several years, until Plaintiff suffered a serious 5 shoulder injury in 1992, which exacerbated his symptoms of anxiety and 6 depression. 7 indicated that following the cessation of Plaintiff s employment in 8 1997, he suffered deepening anxiety and marked depression which 9 worsened significantly. treating (AR Plaintiff 270.) for In severe the anxiety Treatment and Report, Dr. Schachter In addition, Dr. Schachter indicated that 10 Plaintiff, began a pronounced withdrawal from remaining friends and 11 family ... struggling with unrelenting insomnia; these are common 12 features 13 description of Plaintiff s condition continued past the last date of 14 his insured status, December 31, 2001. (AR 30.) of clinical depression. (AR 270.) Dr. Schachter s 15 The ALJ completely discounted Dr. Schachter s diagnostic report, 16 based on several reasons indicated in the decision (see AR at 35-36), 17 including, principally, the fact that there are no progress notes. 18 While the ALJ acknowledged that a flood in Dr. Schachter s office may 19 have destroyed treatment and other relevant notes in 1999, he still 20 determined that Dr. Schachter s opinion would not accorded credibility 21 because of contradictory evidence from Dr. Fishman (AR 34); however, 22 Dr. Fishman treated Plaintiff for physical, not mental impairments. 23 Although Dr. Schachter made a connection between Plaintiff s physical 24 injuries and his ensuing depression and other symptoms, even if there 25 is evidence in the record which might dispute or contradict the 26 existence or extent of Plaintiff s physical injuries, this would not 27 serve to fully depreciate Dr. Schachter s opinion as to Plaintiff s 28 mental condition. 3 1 The Step Two determination of whether a claimant suffers from a 2 severe impairment, as set forth in the regulation (see 20 C.F.R. § 3 404.1520(c)), is recognized as a de minimis screening device [used] 4 to dispose of groundless claims, Smolen v. Chater, 80 F.3d 1273, 1290 5 (9th Cir. 1996). 6 credible to any extent, Dr. Schachter identified conditions that would 7 have more than a minimal effect on Plaintiff s ability to function in 8 the workplace for more than a continuous period of twelve months. The 9 fact that there are no treatment records is not irrelevant, but under 10 the circumstances, has been adequately explained, as acknowledged by 11 the ALJ. 12 even if unexplained, would be an insufficient basis in itself upon 13 which to reject the existence of a severe impairment. 14 clearly has treated Plaintiff for an extensive period of time, and his 15 diagnostic opinions should not have been tossed out like the baby with 16 the bath water because of an absence of treatment records. Enough red 17 flags have been raised about Plaintiff s mental condition to have 18 seemingly inspired the ALJ to develop the record further. 19 v. 20 consequently, does not find that the ALJ s rejection of the existence 21 of a severe mental impairment at Step Two is supported by substantial 22 evidence. 23 determination can be made based upon consideration of substantial 24 evidence. It would certainly appear that, if accepted as Moreover, in this context, the absence of treating records, Heckler, 713 The F.2d matter 441, must 443 be (9th Cir. remanded Dr. Schachter 1983). so that See Brown The a Court, Step Two 25 Plaintiff s second issue, which is whether the ALJ erred in 26 evaluating Plaintiff s severe impairments, is inextricably intertwined 27 with the first issue as to whether Dr. Schachter s opinion was 28 properly considered. The result is the same, which is remand for 4 1 2 3 4 further hearing and consideration of additional evidence. For the foregoing reasons, this matter will be remanded for further hearing consistent with this Memorandum Opinion. IT IS SO ORDERED. 5 6 7 DATED: December 5, 2011 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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