Margaret Bell Carlsen v. Michael J. Astrue, No. 5:2012cv00234 - Document 19 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman: For the reasons stated below, the decision of the Commissioner is reversed, and the matter is remanded for further proceedings consistent with this opinion. (See document for details.) (rla)
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 EASTERN DIVISION 8 9 MARGARET BELL CARLSEN, 10 Plaintiff, 11 12 13 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 12-0234-MLG MEMORANDUM OPINION AND ORDER 16 17 18 Plaintiff Margaret Bell Carlsen seeks judicial review of the 19 Commissioner s final decision denying her application for disability 20 insurance benefits and for disabled widow s benefits. For the reasons 21 stated below, the decision of the Commissioner is reversed, and the 22 matter is remanded for further proceedings consistent with this opinion. 23 24 I. Background 25 Plaintiff was born on April 5, 1953, and was 55 years old at the 26 time she filed her applications. (Administrative Record ( AR ) at 146.) 27 She has a high school education and past relevant work experience as a 28 reservations agent. (AR at 151, 155.) Plaintiff filed her disability 1 1 insurance benefits and widow s benefits applications on June 12, 2008, 2 alleging disability beginning July 9, 2006, due to osteoporosis, a 3 spinal stress fracture and depression. (AR at 142, 150.) 4 Plaintiff s applications were denied initially on October 21, 2008, 5 and upon reconsideration on March 26, 2009. (AR at 82-86, 87-91.) An 6 administrative hearing was held on April 22, 2010, before Administrative 7 Law 8 counsel, testified, as did a Vocational Expert ( VE ). (AR at 43-77.) Judge ( ALJ ) Michael D. Radensky. Plaintiff, represented by 9 On June 3, 2010, the ALJ issued an unfavorable decision. (AR at 22- 10 28.) He found that Plaintiff had not engaged in substantial gainful 11 activity since the disability onset date. (AR at 25.) The ALJ further 12 found that pursuant to 20 C.F.R. 416.920(c), the medical evidence 13 established 14 impairments: degenerative disc disease of the lumbar spine, status post 15 compression fracture at L1, history of fracture of left tibia and 16 fibula, status post ORIF with intramedullary rodding, osteoporosis, and 17 atrial fibrillation. (Id.) However, the ALJ determined that Plaintiff s 18 impairments did not meet, or were not medically equal to, one of the 19 listed impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1. (Id.) 20 The ALJ determined that Plaintiff retained the residual functional 21 capacity ( RFC ) to: that Plaintiff suffered from the following severe 22 perform light work as defined in 20 C.F.R. 416.967(b) except 23 she can lift and carry 20 pounds occasionally and 10 pounds 24 frequently, stand and walk for 2 hours of an 8-hour workday, 25 and 26 occasionally perform postural activities. 27 for 6 hours with appropriate (Id.) 28 sit // 2 breaks. She can 1 The ALJ found that Plaintiff was capable of performing her past 2 relevant work as a reservationist and front desk clerk. Therefore, the 3 ALJ concluded that Plaintiff was not disabled within the meaning of the 4 Social Security Act. See 20 C.F.R. § 416.920(f). (Id.) 5 On January 20, 2012, the Appeals Council denied review. (AR at 1- 6 3.) Plaintiff then timely commenced this action for judicial review. On 7 September 6, 2012, the parties filed a Joint Stipulation ( Joint Stip. ) 8 of disputed facts and issues. Plaintiff contends that the ALJ erred by 9 (1) improperly concluding that Plaintiff s mental impairment was not 10 severe and (2) failing to perform a proper credibility analysis. (Joint 11 Stip. at 4.) Plaintiff seeks reversal of the Commissioner s denial of 12 her applications and payment of benefits or, in the alternative, remand 13 for a new administrative hearing. (Joint Stip. at 23.) The Commissioner 14 requests that the ALJ s decision be affirmed. (Joint Stip. at 24.) 15 After reviewing the parties respective contentions and the record 16 as a whole, the Court finds Plaintiff s contention regarding the ALJ s 17 non-severity finding to be meritorious and remands this matter for 18 further proceedings consistent with this opinion.1 19 20 21 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 22 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 23 decision must be upheld unless the ALJ s findings are based on legal 24 error or are not supported by substantial evidence in the record as a 25 whole. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Batson 26 v. Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); 27 Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 28 1 The Court does not reach the remaining claim of error regarding the ALJ s credibility analysis and will not decide whether this issue would independently warrant relief. 3 1 means such evidence as a reasonable person might accept as adequate to 2 support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); 3 Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more 4 than a scintilla, but less than a preponderance. Robbins v. Soc. Sec. 5 Admin., 466 F.3d 880, 882 (9th Cir. 2006). To determine whether 6 substantial evidence supports a finding, the reviewing court must 7 review the administrative record as a whole, weighing both the evidence 8 that supports and the evidence that detracts from the Commissioner s 9 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If 10 the evidence can support either affirming or reversing the ALJ s 11 conclusion, the reviewing court may not substitute its judgment for 12 that of the ALJ. Robbins, 466 F.3d at 882. 13 14 III. Discussion 15 The Court agrees with Plaintiff that remand is warranted based upon 16 the ALJ s erroneous finding that her mental impairment was non-severe, 17 because that decision is not supported by substantial evidence. The 18 existence of a severe impairment is demonstrated when the evidence 19 establishes that an impairment has more than a minimal effect on an 20 individual s ability to perform basic work activities. Webb v. Barnhart, 21 433 F.3d 683, 686-87 (9th Cir. 2005); Smolen v. Chater, 80 F.3d 1273, 22 1290 23 regulations 24 aptitudes necessary to do most jobs, which include physical functions 25 such as walking, standing, sitting, pushing, carrying; capacities for 26 seeing, hearing and speaking; understanding and remembering simple 27 instructions; responding appropriately in a work setting; and dealing 28 with changes in a work setting. 20 C.F.R. § 404.1521(b). The inquiry at (9th Cir. 1996); define 20 basic C.F.R. work §§ 404.1521(a), activities 4 as 416.921(a). the abilities The and 1 this stage is a de minimis screening device to dispose of groundless 2 claims. Smolen, 80 F.3d at 1290 (citing Bowen v. Yuckert, 482 U.S. 137, 3 153-54 (1987)). An impairment is not severe only if it is a slight 4 abnormality with no more than a minimal effect on an individual s 5 ability to work. See SSR 85-28; Yuckert v. Bowen, 841 F.2d 303, 306 6 (9th Cir. 1988). A finding of no disability at step two may only be 7 affirmed where there is a total absence of objective evidence of severe 8 medical impairment. Webb, 433 F.3d at 688 (reversing a step two 9 determination because there was not substantial evidence to show that 10 Webb s claim was groundless ). 11 Here, Plaintiff has offered sufficient evidence to demonstrate that 12 her mental impairment has more than a minimal effect on her ability to 13 perform 14 administrative hearing regarding her depression caused by her husband s 15 death 16 psychiatrist but her inability to afford their services, and her over 17 100 pound weight loss caused in part by her depression. (AR at 47, 50- 18 53.) In addition, the medical records indicate that Plaintiff had 19 consistently complained of depression 20 beginning in June 2007 and continuing through 2008. Plaintiff was 21 prescribed Lexapro2 for her depression. (See, e.g. AR at 222, 233, 234, 22 235-36, 239, 241, 242, 243, 247, 253, 367, 370.) Plaintiff s 23 records documenting her ongoing mental health treatment as well as her 24 history of prescription medication used to treat mental health disorders 25 indicates a level of impairment that at least meets the de minimis 26 requirement at this stage of the inquiry. Smolen, 80 F.3d at 1290. and work-related her chronic functions. pain, her Plaintiff need to and see testified a anxiety at psychologist the and to her doctors medical 27 2 28 Lexapro is used to treat depression and generalized anxiety disorder. http://www.nlm.nih.gov. 5 1 In addition, the consultative examining psychiatrist, Dr. Ana Maria 2 Andia, M.D. diagnosed Plaintiff with bereavement, mood disorder 3 secondary to medical condition (chronic pain) with major depressive-like 4 features. (AR at 302.) Dr. Andia noted that Plaintiff s mood was 5 depressed and that she was tearful throughout most of the interview. 6 (AR at 301.) Dr. Andia gave Plaintiff a Global Assessment of Functioning 7 ( GAF ) score of 55, which indicates moderate symptoms or moderate 8 difficulty in social, occupational, or school functioning. (AR at 302.) 9 The ALJ found that Plaintiff s depression was not severe, primarily 10 relying 11 consultative examination and Dr. Andia who says she has bereavement, but 12 with no limitations. (AR at 26.) Although it is accurate that there 13 were no psychiatric records, the ALJ omitted the fact that Plaintiff 14 repeatedly stated in her medical records that she wished to see a 15 psychiatrist but could not afford one. The medical records also show 16 that Plaintiff went to Coos County Mental Health Services when she lived 17 in Oregon but that they apparently could not provide her any psychiatric 18 treatment. (AR at 338.) See Nguyen v. Chater, 100 F.3d 1462, 1465 (9th 19 Cir. 1996) (noting that it is common knowledge that depression is one 20 of the most underreported illnesses in the country because those 21 afflicted with often do not recognize that their condition reflects a 22 potentially serious mental illness and that nearly 17 million adult 23 Americans suffer from depression in a given year and that two-thirds of 24 them do not get treatment ). on the fact that the only psychiatric record is the 25 Given the minimal threshold required to show that an impairment is 26 severe, the ALJ s determination that Plaintiff s mental impairment is 27 not severe was not supported by substantial evidence. The ALJ did not 28 sufficiently articulate any reason to reject Plaintiff s longitudinal 6 1 history of complaining to her medical providers of her depression as 2 well as her history of taking Lexapro for her depression. Nor does the 3 fact that there were no psychiatric records, without more, provide a 4 sufficient reason for finding Plaintiff s mental impairment nonsevere, 5 particularly given that Plaintiff repeatedly stated that she cannot 6 afford psychiatric care. Accordingly, the ALJ s non-severity finding at 7 step two of the evaluative process was not supported by substantial 8 evidence and warrants remand for further proceedings. 9 10 IV. Conclusion 11 The decision whether to remand for further proceedings is within 12 this Court s discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th 13 Cir. 14 administrative 15 developed, it is appropriate to exercise this discretion to direct an 16 immediate award of benefits. Id. at 1179; Benecke v. Barnhart, 379 F.3d 17 587, 593 (9th Cir. 2004). 18 that must be resolved before a determination of disability can be made, 19 and it is not clear from the record that the ALJ would be required to 20 find the claimant disabled if all the evidence were properly evaluated, 21 remand is appropriate. Bunnell v. Barnhart, 336 F.3d 1112, 1115-16 (9th 22 Cir. 2003); see also Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 23 2003)(remanding case for reconsideration of credibility determination). 24 Here, the evidence shows a mental impairment that can be considered 25 severe within the meaning of the Social Security Regulations, but 26 which might not prevent Plaintiff from performing either her past work 27 or 28 determination that this Court can make. Accordingly, the case is 2000). some Where work no useful proceedings, in the purpose or where would the be served record has by further been fully However, where there are outstanding issues national economy. 7 However, that is not a 1 remanded for further evaluation in 2 accordance with the five-step sequential process. 3 4 DATED: September 14, 2012 5 6 7 ______________________________ Marc L. Goldman 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 8
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