Lisa Henderson v. Michael J Astrue

Filing 20

MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman. The Court finds tha the Administrate Law Judge's decision is not supported by substantial evidence. It is ordered that this case be remanded to the Commissioner for further proceedings consistent with this opinion. (See Order for details) (db)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 I. 20 Procedural and Factual History Plaintiff Lisa Henderson ("Plaintiff") seeks judicial review of Lisa Henderson, Plaintiff, v. Michael J. Astrue, Commissioner of Social Security Defendant. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION ) ) ) ) ) ) ) ) ) ) ) Case No. CV 07-8325-MLG MEMORANDUM OPINION AND ORDER

21 the Commissioner's final decision denying her application for Social 22 Security Disability Insurance benefits. 23 Security Disability Insurance ("AR") Plaintiff filed for Social on She November alleges 8, 2004.

benefits at 19).

24 (Administrative

Record

disability

25 beginning December 4, 2003, due to lumbar spine degenerative disc 26 disease, lupus and depression. 27 (AR at 21).

Plaintiff was born on July 10, 1966 and was 39 years old at the She completed a high school

28 time of the administrative hearing.

1 education

and

two

years

of

college.

Plaintiff

worked

as

an

2 administrative assistant from 1991 to August 2000 at Verizon. (AR at 3 357-358). She received worker's compensation benefits from January

4 1996 through December 1996 for a back injury that occurred at work. 5 (AR at 361). 6 On May 12, 2005, Plaintiff's application was denied at the (AR at 19). A de novo

7 initial stage of the administrative process.

8 hearing was held on April 26, 2006, before Administrative Law Judge 9 ("ALJ") Charles D. Reite, at which Plaintiff, unrepresented by

10 counsel, testified. (AR at 19). Plaintiff's husband, Ronald Henderson, 11 also testified. (AR at 19). 12 expert. 13 (TR at 383). Sandra Trost testified as a vocational

On February 26, 2007, the ALJ issued an unfavorable decision.

14 The ALJ determined that Plaintiff suffers from the severe impairments 15 of lumbar spine degenerative disc disease and lupus. (AR at 21). The

16 ALJ found that Plaintiff has a number of physical limitations as the 17 result of these medical conditions, including restrictions on how much 18 she can lift and carry, how long she can sit and stand, as well as 19 restrictions on working outside, due to sensitivity to sunlight caused 20 by Plaintiff's lupus. (AR at 23). 21 However, with respect to Plaintiff's claim of depression, the ALJ

22 found that she did not have a "severe" impairment within the meaning 23 of the Social Security regulations. 24 §404.1520(c). (AR at 21); see 20 C.F.R.

The ALJ found that Plaintiff could return to her past

25 relevant work as an administrative assistant as it is generally 26 performed in the national economy. (AR at 25). The ALJ concluded

27 that Plaintiff was not disabled, as defined in the Social Security 28 Act, at any time from December 4, 2003 through the date of the 2

1 decision. (AR at 25). On October 26, 2007, the Appeals Council denied 2 Plaintiff's request for review. (AR at 5-7). 3 Plaintiff timely commenced this action for judicial review.

4 Plaintiff contends that the ALJ: (1) erroneously concluded that 5 Plaintiff's mental impairment was not severe; and (2) did not properly 6 consider the testimony of Plaintiff and her husband, in light of the 7 record as a whole. The Commissioner disagrees and requests that the

8 Commissioner's final decision be affirmed. 9 After reviewing the parties' respective contentions and the

10 record as a whole, the Court finds Plaintiff's contention regarding 11 the ALJ's non-severity finding to be meritorious and remands this 12 matter for further proceedings consistent with this opinion.1 13 14 II. 15 Standard of Review Under 42 U.S.C. § 405(g), a district court may review the

16 Commissioner's decision to deny benefits. The Commissioner's or ALJ's 17 decision must be upheld unless "the ALJ's findings are based on legal 18 error or are not supported by substantial evidence in the record as 19 a whole." Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990);

20 Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 21 evidence means such evidence as a reasonable person might accept as 22 adequate to support a conclusion. Richardson v. Perales, 402 U.S.

23 389, 401 (1971); Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 24 25 26 27 28 The court will only address the non-severity finding. However, as noted above, Plaintiff also challenges the ALJ's determinations regarding the credibility of Plaintiff's and her husband's testimony. Because the ALJ erred by finding Plaintiff's mental impairment nonsevere, the Court does not reach this remaining issue and will not decide whether this issue would independently warrant relief. 3
1

1 2006). It is more than a scintilla, but less than a preponderance. 2 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). To 3 determine whether substantial evidence supports a finding, the

4 reviewing court "must review the administrative record as a whole, 5 weighing both the evidence that supports and the evidence that 6 detracts from the Commissioner's conclusion." Reddick v. Chater, 157 7 F.3d 715, 720 (9th Cir. 1996). "If the evidence can support either 8 affirming or reversing the ALJ's conclusion," the reviewing court "may 9 not substitute its judgment for that of the ALJ." Robbins, 466 F.3d 10 at 882. 11 12 III. Discussion and Analysis 13 The Court agrees with Plaintiff that remand is warranted based

14 on the ALJ's erroneous finding that her mental impairment was non15 severe because that decision is not supported by substantial evidence. 16 The existence of a severe impairment is demonstrated when the evidence 17 establishes that an impairment has more than a minimal effect on an 18 individual's ability to perform basic work activities. Smolen v.

19 Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); 20 C.F.R. §§ 404.1521(a), 20 416.921(a). The regulations define "basic work activities" as "the

21 abilities and aptitudes necessary to do most jobs," which include 22 physical functions such as walking, standing, sitting, pushing, 23 carrying; capacities for seeing, hearing and speaking; understanding 24 and remembering simple instructions; responding appropriately in a 25 work setting; and dealing with changes in a work setting. 20 C.F.R. 26 § 404.1521(b). The inquiry at this stage is "a de minimis screening

27 device to dispose of groundless claims." Smolen, 80 F.3d at 1290 28 (citing Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987)). An impairment 4

1 is not severe only if it is a slight abnormality with "no more than 2 a minimal effect on an individual's ability to work." See SSR 85-28; 3 Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988). 4 Here, Plaintiff has offered sufficient evidence to demonstrate

5 that her mental impairment has more than a minimal effect on her 6 ability to perform work-related functions. In addition to Plaintiff's 7 statements regarding her depression in the Disability Report2, both 8 the consulting physician and the reviewing state agency physician who 9 evaluated Plaintiff's mental state found that she experienced some 10 degree of depression. Although the physicians' assessments varied in 11 terms of severity, both indicated a level of impairment that meets the 12 "de minimis" requirement at this stage of the inquiry. 13 F.3d at 1290. Smolen, 80

The ALJ simply did not persuasively explain why he

14 rejected these findings. 15 For example, on May 2, 2005, State Agency consultive psychiatrist

16 Dr. Christopher Ho performed a complete psychiatric evaluation of 17 Plaintiff. Dr. Ho diagnosed the Plaintiff with depression. Dr. Ho

18 observed that Plaintiff appeared mildly sad and indifferent, and was 19 "tearful at times." Dr. Ho also gave the Plaintiff a Global

20 Assessment of Functioning ("GAF") score of 50, which is generally 21 indicative of serious mental impairments. Dr. Ho found that her

22 prognosis was fair to guarded. (AR at 212-216). 23 The ALJ did not accept Dr. Ho's opinion "since it is not based

24 on a treating relationship, and the narrative does not support the GAF 25 score and conclusion. 26 27 28 "I get really depressed often because of [sic] I can't do a lot of things. My illnesses and injury has [sic] changed my life physically and financially. I feel worthless and feel like a burden to my family." (AR at 83). 5
2

In addition, Dr. Ho finds [Plaintiff's]

1 psychological

condition

to

be

based

primarily

on

her

physical

2 impairments not psychologically based. Although Dr. Ho noted that the 3 claimant was tearful at times, she also did not display many types of 4 depressive symptoms such as hallucinations, and she was oriented times 5 four and had appropriate affect." 6 (AR at 21).

In reaching this conclusion, the ALJ improperly discounted Ho's Ho's clinical evaluation even and conclusions based in constitute part on

7 opinion. 8 "objective

clinical

findings,"

though

9 Plaintiff's subjective complaints.

Furthermore, Plaintiff need not

10 display hallucinations, nor must the cause of her depression be 11 "psychologically based," as opposed to being caused by her physical 12 ailments, as the ALJ implies it must, in order to meet the de minimis 13 step two severity threshold. 14 Second, the May 10, 2005 State Agency Mental Residual Functional

15 Capacity Assessment and the May 10, 2005 State Agency Psychiatric 16 Review Technique form found Plaintiff to have "moderate mental

17 functional limitations on her ability to maintain concentration, 18 persistence or pace." 19 medical evidence of Again, the ALJ improperly rejected valid Plaintiff's mental impairment, because the

20 opinions "are based only on a nonexamining relationship and are not 21 supported by the record." (AR at 22). However, the reviewing

22 physicians are, by definition, non-treating physicians, whose primary 23 function is to examine the medical record. Therefore, this is not a

24 valid reason for rejecting the opinion of the reviewing physician. 25 The ALJ placed significant weight on the fact that Plaintiff had

26 "not had any mental health treatment aside from Dr. Ho's examination 27 since the December 4, 2003 alleged onset date," and the fact that 28 Plaintiff was not currently "taking any mental health medications." 6

1 (AR at 22).

The ALJ, however, omitted a notation in Dr. Ho's report,

2 where Plaintiff stated that "she was recommended to see a therapist 3 but her insurance would not cover this." (AR at 213). Further, the

4 Ninth Circuit has recognized that depression is "one of the most 5 under-reported illnesses in the country because those afflicted often 6 do not recognize that their condition reflects a potentially serious 7 mental illness." Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 8 1996). Thus, the fact that Plaintiff "may be one of millions of

9 people who did not seek treatment for a mental disorder until late in 10 the day is not a substantial basis on which to conclude that [the 11 consulting and examining physicians'] assessment of claimant's

12 condition is inaccurate." Id. 13 The only other factual evidence the ALJ identified in finding mental impairment to be non-severe was Plaintiff's

14 Plaintiff's

15 testimony that she could "pay bills, count change, handle a savings 16 account and use a checkbook/money orders." (AR at 22). The ALJ found

17 this fact consistent with Dr. Ho's opinion, but "inconsistent with 18 moderate mental functional limitations and is evidence that she can 19 perform complex tasks." (AR at 22). 20 Given the minimal threshold required to show that an impairment

21 is severe, the ALJ's determination that Plaintiff's mental impairments 22 are not severe was not supported by substantial evidence. First, the

23 ALJ did not sufficiently articulate any reason to reject the objective 24 findings of both the consulting and examining physicians. Plaintiff's 25 impairments and complaints of depression are consistently and

26 objectively documented in her medical records.

Second, the factual

27 evidence upon which the ALJ based his decision does not, without more, 28 support a finding of non-severity. 7 The ALJ appears not to have

1 considered

the

record

as

a

whole,

but

instead

emphasized

only

2 selective evidence which was unfavorable to Plaintiff. 3 the ALJ's failure to find Plaintiff's mental

Accordingly, severe

impairment

4 warrants remand for further proceedings and evaluation of Plaintiff. 5 6 V. 7 Conclusion The decision whether to remand for further proceedings is within

8 this Court's discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th 9 Cir. 2000). 10 administrative Where no useful purpose would be served by further proceedings, or where the record has been fully

11 developed, it is appropriate to exercise this discretion to direct an 12 immediate award of benefits. Id. at 1179 ("the decision of whether

13 to remand for further proceedings turns upon the likely utility of 14 such proceedings"); Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 15 2004). However, where there are outstanding issues that must be

16 resolved before a determination of disability can be made, and it is 17 not clear from the record that the ALJ would be required to find the 18 claimant disabled if all the evidence were properly evaluated, remand 19 is appropriate. Bunnell v. Barnhart, 336 F.3d 1112, 1115-16 (9th Cir. 20 2003); see also Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 21 2003)(remanding 22 determination). 23 Here, the evidence shows an impairment that can be considered case for reconsideration of credibility

24 "severe" within the meaning of the Social Security Regulations, but 25 which might not prevent Plaintiff from performing either her past work 26 or some work in the national economy. 27 determination that this Court can make. However, that is not a Accordingly, the case is

28 remanded for further evaluation in accordance with the five-step 8

1 sequential process. 2 3 ORDER For the reasons stated above, the Court finds that the ALJ's

4 decision is not supported by substantial evidence. 5 Accordingly, it is ORDERED that this case be remanded to the

6 Commissioner for further proceedings consistent with this opinion. 7 IT IS FURTHER ORDERED that the Clerk of the Court serve copies

8 of this Order and the Judgment herein on all parties or their counsel. 9 10 Dated: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 September 12, 2008 ________________________ MARC L. GOLDMAN United States Magistrate Judge