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Roach v. Astrue


August 5, 2009


The opinion of the court was delivered by: Rosalyn M. Chapman United States Magistrate Judge


Plaintiff Stephanie Roach filed a complaint on October 21, 2008, seeking review of the Commissioner's decision denying her application for disability benefits. On May 18, 2009, the Commissioner answered the complaint, and the parties filed a joint stipulation on May 29, 2009.



On June 9, 2006, plaintiff applied for disability benefits under the Supplemental Security Income ("SSI") program of Title XVI of the Social Security Act ("Act"), 42 U.S.C. § 1382(a), claiming an inability to work since January 1, 2003, due to depression and constant pain. Certified Administrative Record ("A.R.") 8, 111. The plaintiff's application was denied on December 28, 2006. A.R. 40-44. The plaintiff then requested an administrative hearing, which was held before Administrative Law Judge Mary L. Everstine ("the ALJ") on June 10, 2008. A.R. 24-38, 47. On July 25, 2008, the ALJ issued a decision finding plaintiff is not disabled. A.R. 5-13. The plaintiff appealed this decision to the Appeals Council, which denied review on September 8, 2008. A.R. 1-4.


The plaintiff, who was born on March 16, 1963, is currently 46 years old. A.R. 26. She is a high school graduate, has been trained as a certified nurse's assistant and a medical assistant, and has previously worked as a certified nursing assistant, waitress and server. A.R. 27, 83-90, 112, 115-16, 118-27.

On November 30, 2005, plaintiff was prescribed Elavil*fn1 at the SEP Medical Clinic. A.R. 159-60. On July 6, 2006,*fn2 Afshin Akhavan, D.O., examined plaintiff, diagnosed her with depression and insomnia, and prescribed Elavil. A.R. 191. On August 4, 2006, Dr. Akhavan opined plaintiff was temporarily totally disabled through August 30, 2006, due to her depression and other conditions. A.R. 189. Dr. Akhavan reexamined plaintiff on August 7, 2006, and prescribed Zoloft*fn3 for her. A.R. 190, 239. On October 26, 2006, Dr. Akhavan prescribed Ambien*fn4 for plaintiff. A.R. 238.

On November 18, 2006, Jason H. Yang, M.D., a psychiatrist, examined plaintiff, diagnosed her with an unspecified depressive disorder, and determined plaintiff's Global Assessment of Functioning ("GAF") was 66.*fn5 A.R. 193-96. Dr. Yang found there was no evidence of cognitive defects, perceptual disturbances or delusional disorders on mental status examination, A.R. 196, and he opined:

[Plaintiff] is able to focus attention adequately. She is able to follow one and two part instructions. [She] can adequately remember and complete simple and complex tasks. She is able to tolerate the stress inherent in the work environment, maintain regular attendances, and work without supervision. In addition, she was able to interact appropriately with myself and staff, and I imagine that she would be able to interact appropriately with supervisors, co-workers, and the public in the workplace.


On June 5, 2007, plaintiff was examined at the Los Angeles County Department of Mental Health's Kedren Community Mental Health Center ("DMH"),*fn6 diagnosed as having a major depressive disorder with psychotic features, and her GAF was determined to be 47.*fn7 A.R. 224-28. Upon mental status examination, it was found plaintiff's remote memory was impaired; she was dysphoric, anxious, isolated and withdrawn; had a sad affect and excessive crying; she had paranoid delusions and visual hallucinations; and her judgment was moderately impaired, her insight was minimally impaired, and she exhibited antisocial behavior. A.R. 227. The plaintiff received mental health treatment at this facility, including individual therapy and psychiatric medication, until September 14, 2007. A.R. 229, 240-46.



The Court, pursuant to 42 U.S.C. § 405(g), has the authority to review the Commissioner's decision denying plaintiff disability benefits to determine if his findings are supported by substantial evidence and whether the Commissioner used the proper legal standards in reaching his decision. Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009); Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009).

The claimant is "disabled" for the purpose of receiving benefits under the Act if she is unable to engage in any substantial gainful activity due to an impairment which has lasted, or is expected to last, for a continuous period of at least twelve months. 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). "The claimant bears the burden of establishing a prima facie case of disability." Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996).

The Commissioner has promulgated regulations establishing a five-step sequential evaluation process for the ALJ to follow in a disability case. 20 C.F.R. § 416.920. In the First Step, the ALJ must determine whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R. § 416.920(b). If not, in the Second Step, the ALJ must determine whether the claimant has a severe impairment or combination of impairments significantly limiting her from performing basic work activities. 20 C.F.R. § 416.920(c). If so, in the Third Step, the ALJ must determine whether the claimant has an impairment or combination of impairments that meets or equals the requirements of the Listing of Impairments ("Listing"), 20 C.F.R. § 404, Subpart P, App. 1. 20 C.F.R. § 416.920(d). If not, in the Fourth Step, the ALJ must determine whether the claimant has sufficient residual functional capacity despite the impairment or various limitations to perform her past work. 20 C.F.R. § 416.920(f). If not, in Step Five, the burden shifts to the Commissioner to show the claimant can perform other work that exists in significant numbers in the national economy. 20 C.F.R. § 416.920(g).

Moreover, where there is evidence of a mental impairment that may prevent a claimant from working, the Commissioner has supplemented the five-step sequential evaluation process with additional regulations addressing mental impairments. Maier v. Comm'r of the Soc. Sec. Admin., 154 F.3d 913, 914 (9th Cir. 1998) (per curiam). First, the ALJ must determine the presence or absence of certain medical findings relevant to the ability to work. 20 C.F.R. § 416.920a(b)(1). Second, when the claimant establishes these medical findings, 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). Third, 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). Fourth, when a mental impairment is found to be severe, the ALJ must determine if it meets or equals a Listing. 20 C.F.R. § 416.920a(d)(2). Finally, if a Listing is not met, the ALJ must then perform a residual functional capacity assessment, and the ALJ's decision "must incorporate the pertinent findings and conclusions" regarding 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).

Applying the five-step sequential evaluation process, the ALJ found plaintiff has not engaged in substantial gainful activity since the application date, June 9, 2006. (Step One). The ALJ then found plaintiff does not have a severe impairment or combination of impairments; therefore, she is not disabled. (Step Two).


The Step Two inquiry is "a de minimis screening device to dispose of groundless claims." Smolen, 80 F.3d at 1290; Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). Including a severity requirement at Step Two of the sequential evaluation process "increases the efficiency and reliability of the evaluation process by identifying at an early stage those claimants whose medical impairments are so slight that it is unlikely they would be found to be disabled even if their age, education, and experience were taken into account." Bowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287, 2297, 96 L.Ed. 2d 119 (1987). However, an overly stringent application of the severity requirement violates the Social Security Act by denying benefits to claimants who do meet the statutory definition of disabled. Corrao v. Shalala, 20 F.3d 943, 949 (9th Cir. 1994).

A severe impairment or combination of impairments within the meaning of Step Two exists when there is more than a minimal effect on an individual's ability to do basic work activities. Webb, 433 F.3d at 686; Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); see also 20 C.F.R. § 416.921(a) ("An impairment or combination of impairments is not severe if it does not significantly limit [a person's] physical or mental ability to do basic work activities.").

Basic work activities are "the abilities and aptitudes necessary to do most jobs," including physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling, as well as the capacity for seeing, hearing and speaking, understanding, carrying out, and remembering simple instructions, use of judgment, responding appropriately to supervision, co-workers and usual work situations, and dealing with changes in a routine work setting.

20 C.F.R. § 416.921(b); Webb, 433 F.3d at 686. If the claimant meets her burden of demonstrating she suffers from an impairment affecting her ability to perform basic work activities, "the ALJ must find that the impairment is 'severe' and move to the next step in the SSA's five-step process." Edlund v. Massanari, 253 F.3d 1152, 1160 (9th Cir. 2001) (emphasis in original); Webb, 433 F.3d at 686.

Plaintiff contends the ALJ failed to properly consider the DMH medical records in making the Step Two determination that she does not have a severe mental impairment. The plaintiff is correct.

The medical opinions of treating physicians are entitled to special weight because the treating physician "is employed to cure and has a greater opportunity to know and observe the patient as an individual." Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). Therefore, the ALJ must provide clear and convincing reasons for rejecting the uncontroverted opinion of a treating physician, Ryan v. Comm'r of the Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008); Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998), and "[e]ven if [a] treating doctor's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing 'specific and legitimate reasons' supported by substantial evidence in the record." Reddick, 157 F.3d at 725; Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008).

Here, the ALJ discounted plaintiff's mental health records,*fn8 concluding "the record documents mental health treatment for only a few months." A.R. 10, 12. However, this is not accurate. Although plaintiff appears to have been treated at DMH for only four months or so between June and September 2007, she was prescribed Elavil as early as November 30, 2005, A.R. 160, and again in July 2006, when her treating physician, Dr. Akhavan, prescribed both Elavil and Zoloft for plaintiff. A.R. 189-92, 230-39. Further, the ALJ failed to address DMH's June 5, 2007 determination that plaintiff's GAF was 47. As previously noted, a GAF score of 47 indicates "[s]erious symptoms" or "any serious impairment in social, occupational, or school functioning. . . ." Although an ALJ need not discuss a GAF score in all instances, Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002), the ALJ must do so when, as here, he has not provided any rationale for otherwise rejecting a treating physician's opinion of a claimant's overall mental functioning, and such opinion - as expressed in a GAF score - clearly contradicts the ALJ's finding regarding the claimant's mental functioning. See, e.g., McCloud v. Barnhart, 166 Fed. Appx. 410, 418 (11th Cir. 2006) (per curiam) (Unpublished) ("We are unable to determine from the record what weight the ALJ placed on the GAF score of 45; therefore, we reject the Commissioner's argument that any error was harmless. With the knowledge that a GAF score of 45 reflects severe impairments, the ALJ should determine what, if any, weight to place on the score."); Lee v. Barnhart, 117 Fed. Appx. 674, 678 (10th Cir. 2004) (Unpublished) ("A GAF score of 50 or less . . . does suggest an inability to keep a job. In a case like this one, decided at step two, the GAF score should not have been ignored." (citation omitted)); Bennett v. Barnhart, 264 F. Supp. 2d 238, 255 (W.D. Pa. 2003) (Contrary to ALJ's Step Two determination, "a GAF score of 55 to 60 suggests . . . a mental impairment that is 'severe' in nature."); Rodriguez v. Astrue, 2009 WL 1586529, *2 (C.D. Cal.) ("[T]he ALJ erred in his Step Two determination by failing to properly consider the treating clinician's . . . opinion that [the claimant] suffered from a severe mental impairment, as evidenced by the clinician's rating of [the claimant's GAF] at 50.").

For these reasons, the ALJ's Step Two determinations that plaintiff does not have a severe mental impairment, and is not disabled, are not supported by substantial evidence.


When the ALJ's decision is not supported by substantial evidence, the Court has the authority to affirm, modify, or reverse the decision "with or without remanding the cause for rehearing." 42 U.S.C. § 405(g); McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). Generally, "'the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.'" Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004). Here, remand is appropriate so the ALJ can properly assess the medical evidence and determine whether plaintiff has a severe mental impairment and is disabled.*fn9 Webb, 433 F.3d at 688; Edlund, 253 F.3d at 1160.



(1) plaintiff's request for relief is granted; and (2) the Commissioner's decision is reversed, and the action is remanded to the Social Security Administration for further proceedings consistent with this Opinion and Order, pursuant to sentence four of 42 U.S.C. § 405(g), and Judgment shall be entered accordingly.

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