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Payne v. Astrue

January 6, 2009

SYLVESTER I. PAYNE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge

MEMORANDUM OF DECISION

Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for supplemental security income ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

The parties are familiar with the procedural facts, which are set forth in the joint stipulation. [See JS 2-3]. In a written hearing decision that constitutes the final decision of the Commissioner, an administrative law judge ("ALJ") found that plaintiff had severe impairments consisting of a history of head trauma and hypertension, but that he retained the residual functional capacity ("RFC") to perform medium work. The ALJ concluded that plaintiff was not disabled because his RFC did not preclude him from performing either his past relevant work or alternative work available in significant numbers in the national economy. [See JS 2-3; Administrative Record ("AR") 27].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).

Discussion

Severity Determination

Plaintiff contends that the ALJ improperly found that plaintiff did not have a severe mental impairment.

At step two of the five-step sequential evaluation procedure, the Commissioner must determine whether the claimant has a severe, medically determinable impairment or combination of impairments. See Smolen v. Chater, 80 F.3d 1273, 1289-1290 (9th Cir. 1996) (citing Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987)). A medically determinable mental impairment is one that results "from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques," and it "must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by [the claimant's] statement of symptoms." 20 C.F.R. §§ 404.1508, 416.908; see 20 C.F.R. §§ 404.1520a(b)(1), 416.920a(b)(1). A medically determinable impairment or combination of impairments may be found "not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work." Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2006) (quoting Smolen, 80 F.3d at 1290).

To assess severity, the ALJ must determine whether a claimant's impairment or combination of impairments significantly limits his or her physical or mental ability to do "basic work activities." 20 C.F.R. §§ 404.1521 (a), 416.921(a); see Webb, 433 F.3d at 686. Basic work activities are the "abilities and aptitudes necessary to do most jobs," such as (1) physical functions like walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, and handling; (2) the capacity for seeing, hearing, speaking, understanding, carrying out, and remembering simple instructions; (3) the use of judgment; and (4) the ability to respond appropriately to supervision, co-workers, and usual work situations. 20 C.F.R. §§ 404.1521(b), 416.921(b). The ALJ is required to consider the claimant's subjective symptoms in making a severity determination, provided that the claimant "first establishes by objective medical evidence (i.e., signs and laboratory findings) that he or she has a medically determinable physical or mental impairment(s) and that the impairment(s) could reasonably be expected to produce the alleged symptom(s)." SSR 96-3p, at *3.

If the ALJ "is unable to determine clearly the effect of an impairment or combination of impairments on the individual's ability to do basic work activities, the sequential evaluation should not end" at step two. Webb, 433 F.3d at 687 (quoting SSR 85-28); see McCrea v. Comm'r of Soc. Sec., 370 F.3d 357, 360 (3rd Cir. 2004)("The burden placed on an applicant at step two is not an exacting one. . . . Any doubt as to whether this showing has been made is to be resolved in favor of the applicant.").

As the ALJ noted in his decision, treatment records from the Los Angeles County Department of Mental Health indicate that plaintiff, who was then 44 years old, was brought to the West Central Mental Health Clinic ("West Central MHC") by his parents in February 2005 for reported symptoms of hearing voices and bells ringing, problems with anger, crying spells, and difficulty sleeping. [AR 25, 156-157]. The "crisis contact" evaluation states that plaintiff is "very suspicious, even of family members." [AR 156]. Plaintiff lived with his mother and "is supported by family members." [AR 156]. Plaintiff was reported to have been shot in the head in 1997, and the "[b]ullets were not removed because the particles were too close to the brain." [AR 156]. The diagnoses were dementia secondary to head trauma with behavioral problems and bipolar disorder with psychotic features. Plaintiff was prescribed Abilify, an antipsychotic, Topamax, an anticonvulsant, and the antidepressants Trazadone and Lexapro. The examining physician assigned plaintiff a Global Assessment of Function ("GAF") score of 40, denoting some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders Multiaxial Assessment 30, 34 (4th ed. 1994)(revised 2002).

Plaintiff attended medication follow-up visits at West Central MHC through June 2005, when plaintiff's prognosis was described as "poor." [AR 148]. Plaintiff and his mother initially reported that he felt "calm" on medications, had less ringing in the ears, and was sleeping well. Subsequently, however, plaintiff reported that he had problems obtaining medication refills and had noticed an ...


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