Latasha M Washington v. Michael J Astrue, No. 5:2007cv01068 - Document 19 (C.D. Cal. 2008)

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. (READ ATTACHED ORDER FOR DETAILS) (esa)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LATASHA M. WASHINGTON, Plaintiff, 12 13 14 15 ) ) ) ) ) ) ) ) ) ) ) ) v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant. 16 NO. EDCV 07-01068 SS MEMORANDUM DECISION AND ORDER 17 INTRODUCTION 18 19 20 Latasha M. Washington ( Plaintiff ) brings this action seeking to 21 reverse and remand the decision of the Commissioner of the Social 22 Security Administration (hereinafter the Commissioner or the Agency ) 23 denying 24 benefits. The parties consented, pursuant to 28 U.S.C. § 636(c), to the 25 jurisdiction of the undersigned United States Magistrate Judge. For the 26 reasons stated below, the decision of the Commissioner is REVERSED and 27 REMANDED for further proceedings. 28 her application for Supplemental Security Income ( SSI ) THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 1 2 3 To qualify for disability benefits, a claimant must demonstrate 4 a medically determinable physical or mental impairment that prevents him 5 from engaging in substantial gainful activity1 and that is expected to 6 result in death or to last for a continuous period of at least twelve 7 months. 8 42 U.S.C. § 423(d)(1)(A)). 9 incapable of performing the work he previously performed and incapable 10 of performing any other substantial gainful employment that exists in 11 the national economy. 12 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. 13 To decide if a claimant is entitled to benefits, an ALJ conducts 14 15 a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are: 16 (1) 17 Is the claimant presently engaged in substantial gainful 18 activity? 19 If not, proceed to step two. (2) 20 If so, the claimant is found not disabled. Is the claimant s impairment 21 claimant is found not disabled. 22 severe? If not, the three. 23 (3) 24 Does the claimant s If so, proceed to step impairment meet or equal the requirements of any impairment listed at 20 C.F.R. Part 25 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. 2 1 404, Subpart P, Appendix 1? 2 found disabled. (4) 3 If so, the claimant is If not, proceed to step four. Is the claimant capable of performing his past work? 4 so, the claimant is found not disabled. 5 If to step five. (5) 6 If not, proceed Is the claimant able to do any other work? 7 claimant is found disabled. 8 If not, the If so, the claimant is found not disabled. 9 10 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 11 949, 12 404.1520(b)-(g)(1) & 416.920(b)-(g)(1). 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. §§ 13 The claimant has the burden of proof at steps one through four, and 14 15 the Commissioner has the burden of proof at step five. 16 F.3d at 953-54. 17 establishing an inability to perform past work, the Commissioner must 18 show that the claimant can perform some other work that exists in 19 significant numbers in the national economy, taking into account the 20 claimant s residual functional capacity ( RFC ),2 age, education, and 21 work 22 404.1520(g)(1), 416.920(g)(1). 23 testimony of a vocational expert or by reference to the Medical- 24 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 25 Appendix 2 (commonly known as the Grids ). experience. Bustamante, 262 If, at step four, the claimant meets his burden of Tackett, 180 F.3d at 1100; 20 C.F.R. §§ The Commissioner may do so by the Osenbrock v. Apfel, 240 26 27 28 2 Residual functional capacity is what [one] can still do despite [his] limitations and represents an assessment based upon all of the relevant evidence. 20 C.F.R. §§ 404.1545(a), 416.945(a). 3 1 F.3d 1157, 1162 (9th Cir. 2001). 2 (strength-related) 3 inapplicable and the ALJ must take the testimony of a vocational expert. 4 Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). and When a claimant has both exertional nonexertional limitations, the Grids are 5 STANDARD OF REVIEW 6 7 Under 8 9 42 U.S.C. § 405(g), a district Commissioner s decision to deny benefits. court may review the The court may set aside the 10 Commissioner s decision when the ALJ s findings are based on legal error 11 or are not supported by substantial evidence in the record as a whole. 12 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 13 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 14 Substantial evidence is more than a scintilla, but less than a 15 16 preponderance. 17 which a reasonable person might accept as adequate to support a 18 conclusion. 19 a finding, the court must consider the record as a whole, weighing 20 both 21 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 22 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 23 reasonably support either affirming or reversing that conclusion, the 24 court may not substitute its judgment for that of the Commissioner. 25 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 26 27 28 4 that detracts from the If the evidence can 1 DISCUSSION 2 3 Plaintiff contends that the ALJ erred for a number of reasons. 4 Incorporated into several of her arguments is her contention that the 5 ALJ erred when he found that her depression did not constitute a severe 6 mental impairment at step-two of the sequential evaluation process. 7 For 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 The ALJ Failed To Properly Assess Plaintiff s Mental Health 11 Impairment At Step Two Of The Evaluation Process 12 13 Plaintiff argues that the ALJ erred by finding that her mental 14 impairment was not severe. (Jt. Stip. at 12-13). Specifically, 15 Plaintiff complains that the ALJ ignored a medical diagnosis by her 16 treating physician of Major Depression Disorder, Recurrent. (AR 315). 17 She was also diagnosed with a GAF score of 50, which indicates serious 18 symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent 19 shoplifting) or any serious impairment in social, occupational, or 20 school functioning (e.g., no friends, unable to keep a job). 21 Stip. at 12). 22 disorder at the Riverside County Department of Mental Health. 23 18, 248-263, 301-309, 311-324). (Jt. Plaintiff received outpatient care for her depressive (AR 17- 24 25 By its own terms, the evaluation at step two is a de minimis test 26 intended to weed out the most minor of impairments. 27 Yuckert, 482 U.S. 137, 153-154, 107 S. Ct. 2287, 96 L. Ed. 2d 119 28 (1987); Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001)(stating 5 See Bowen v. 1 that the step two inquiry is a de minimis screening device to dispose 2 of groundless claims)(quoting Smolen, 80 F.3d at 1290). 3 is not severe only if the evidence establishes a slight abnormality 4 that has no more than a minimal effect on an individuals ability to 5 work. 6 omitted). An impairment Smolen, 80 F.3d at 1290 (internal quotations and citations 7 8 9 The ALJ here applied more than a de minimis test when he determined that Plaintiff s mental impairment was not severe. Moreover, he failed 10 to follow the Secretary s own regulations governing the evaluation of 11 mental impairments, as described below. 12 13 Where there is evidence of a mental impairment that allegedly 14 prevents the plaintiff from working, as there is here, the Agency has 15 supplemented the five-step sequential evaluation process with additional 16 regulations.3 17 914-15 (9th Cir. 1998)(citing 20 C.F.R. § 416.920a)(per curiam). First, 18 the ALJ must 19 findings relevant to the plaintiff s ability to work. 20 416.920a(b)(1). 21 findings, the ALJ must rate the degree of functional loss resulting from 22 the impairment by considering four areas of function: (a) activities of 23 daily living; (b) social functioning; (c) concentration, persistence, 24 or pace; and Maier v. Comm r of the Soc. Sec. Admin., 154 F.3d 913, determine the presence or absence of certain medical 20 C.F.R. § Second, when the plaintiff establishes these medical (d) episodes of decompensation. 20 C.F.R. § 25 26 27 28 3 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. 6 1 416.920a(c)(2)-(4). 2 must determine whether the claimant has a severe mental impairment. 3 C.F.R. § 416.920a(d). 4 severe, the ALJ must determine if it meets or equals a listing in 20 5 C.F.R. Part 404, Subpart P, Appendix 1. 6 Finally, if a listing is not met, the ALJ must then assess the 7 plaintiff s RFC, and the ALJ s decision must incorporate the pertinent 8 findings and conclusions regarding the plaintiff s mental impairment, 9 including a specific finding as to the degree of limitation in each of Third, after rating the degree of loss, the ALJ 20 Fourth, when a mental impairment is found to be 20 C.F.R. § 416.920a(d)(2). 10 the functional areas described in [§ 416.920a(c)(3)]. 11 20 C.F.R. § 416.920a(d)(3), (e)(2). 12 13 The regulations describe an impairment as follows: 14 15 A physical or mental impairment must result from anatomical, 16 physiological, or psychological abnormalities which can be 17 shown 18 diagnostic techniques. 19 be established by medical evidence consisting of signs, 20 symptoms, 21 plaintiff s] statements of symptoms. by medically and acceptable clinical and laboratory A physical or mental impairment must laboratory findings, not only by [a 22 23 20 C.F.R. § 416.908; see also Ukolov v. Barnhart, 420 F.3d 1002, 1005 24 (9th Cir. 2005) (noting that the existence of a medically determinable 25 physical or mental impairment may only be established with objective 26 medical findings) (citing Social Security Ruling 96-4p, 1996 WL 374187 27 at *1-2). 28 7 1 Here, the ALJ failed to thoroughly discuss or address the medical 2 evidence when making his step-two evaluation. Defendant argues that the 3 records did not indicate any acute mental crisis, (Jt. Stip. at 4), 4 but an acute mental crisis is not required for the step-two severity 5 evaluation. Plaintiff provided objective medical evidence demonstrating 6 that her depression is more than a slight abnormality and that her 7 depression has more than a minimal effect on her ability to work. 8 Smolen, 80 F.3d at 1290 (internal quotations and citations). 9 10 Objective medical findings indicate that Plaintiff suffered from 11 a mental health impairment. 12 opinions . . . that reflect judgments about the nature and severity of 13 [a 14 prognosis, are evidence that a plaintiff may submit in support of his 15 disability claim). 16 regulations for evaluating mental impairments. 17 step-two analysis has been recognized as a de minimis test designed to 18 identify and dismiss only frivolous claims, the ALJ found that she did 19 not have a severe mental impairment at step-two. 20 applied more than a de minimis test and his conclusion at step two that 21 Plaintiff does not suffer from a severe mental impairment was error. 22 See 20 C.F.R. § 416.920a(b)(1). plaintiff s] See 20 C.F.R. § 416.927(a)(2) ( Medical impairment(s), including symptoms, diagnosis and The ALJ, however, failed to follow the Secretary s Moreover, although the Thus, the ALJ 23 24 Remand for further proceedings is appropriate where additional 25 proceedings could remedy defects in the Commissioner s decision. 26 Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000); Kail v. Heckler, 27 722 F.2d 1496, 1497 (9th Cir. 1984). 28 8 See Because the ALJ improperly 1 evaluated Plaintiff s mental health impairment at step two, the case 2 must be remanded to remedy this defect. 3 Upon remand, the ALJ must conduct the supplemental evaluation of 4 5 mental impairment evidence. 6 presence 7 plaintiff s ability to work. 20 C.F.R. § 416.920a(b)(1). However, this 8 Court has determined that there is objective medical evidence that 9 Plaintiff suffers from a mental impairment relevant to her ability to or absence of Normally, the ALJ must first determine the certain medical findings Thus, the ALJ need not address this question. relevant 10 work. 11 ALJ 12 \\ 14 \\ 15 \\ 16 \\ 17 the supplemental evaluation of mental impairment evidence.4 13 to \\ must only complete the remaining inquiries Accordingly, the required in the 18 19 20 4 21 22 23 24 25 26 27 28 Specifically, the ALJ must rate the degree of functional loss resulting from the impairment by considering four areas of function: (a) activities of daily living; (b) social functioning; (c) concentration, persistence, or pace; and (d) episodes of decompensation. 20 C.F.R. § 416.920a(c)(2)-(4). Next, after rating the degree of loss, the ALJ must determine whether the claimant has a severe mental impairment. 20 C.F.R. § 416.920a(d). If the mental impairment is found to be severe, the ALJ must determine if it meets or equals a listing in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. § 416.920a(d)(2). Finally, if a listing is not met, the ALJ must then assess the plaintiff s RFC, and the ALJ s decision must incorporate the pertinent findings and conclusions regarding he plaintiff s mental impairment, including a specific finding as to the degree of limitation in each of the functional areas described in [§ 416.920a(c)(3)]. 20 C.F.R. § 416.920a(d)(3), (e)(2). 9 1 CONCLUSION 2 3 Consistent with the foregoing, IT IS ORDERED that judgment be 4 entered REVERSING the decision of the Commissioner and REMANDING this 5 matter for further proceedings consistent with this decision. IT IS 6 FURTHER ORDERED that the Clerk of the Court serve copies of this Order 7 and the Judgment on counsel for both parties. 8 9 DATED: October 31, 2008. 10 11 12 __________/s/__________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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