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Giles v. Astrue


August 11, 2009


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


Plaintiff Mary V. Giles filed a complaint on March 6, 2008, seeking review of the Commissioner's decision denying her application for disability benefits, and on July 24, 2008, the Commissioner answered the complaint. The parties filed a joint stipulation on September 11, 2008.



On May 25, 2005 (protective filing date), plaintiff applied for disability benefits under the Supplemental Security Income program of Title XVI of the Social Security Act ("the Act"), claiming an inability to work since January 1, 2000, due to fibromyalgia and eye degeneration.*fn1 Certified Administrative Record ("A.R.") 11, 99-101, 109. The plaintiff's application was initially denied on July 8, 2005, and was again denied following reconsideration on October 21, 2005. A.R. 70-82. The plaintiff then requested an administrative hearing, which was held on May 23 and October 19, 2007, before Administrative Law Judge Thomas J. Gaye ("the ALJ"). A.R. 68-69, 537-70. On November 21, 2007, the ALJ issued a decision finding plaintiff is not disabled. A.R. 8-18. The plaintiff appealed this decision to the Appeals Council, which denied review on February 6, 2008. A.R. 4-7.


The plaintiff was born on June 23, 1959, and is currently 50 years old. A.R. 99, 102. She is a high school graduate who has attended two years of college, has trained as a medical assistant and an investigative assistant, and has previously worked as a sales associate, care taker, data entry operator and sales clerk. A.R. 110-11, 113, 115-28, 141-42, 145.

Between November 26, 2006, and September 9, 2007, the Riverside County Department of Mental Health ("DMH") provided plaintiff with mental health treatment, including psychotherapy and medication.*fn2

A.R. 380-429, 467-92. On December 8, 2006, Lisa Schmid, M.D., examined plaintiff, found she had auditory and visual hallucinations and "death wishes," among other symptoms, diagnosed plaintiff with severe, recurrent major depression, rule out schizophrenia, determined plaintiff's Global Assessment of Functioning ("GAF") was 20,*fn3 and prescribed plaintiff Paxil*fn4 and Risperdal.*fn5 A.R. 483, 490-91. On or about December 15, 2006, Katrina Ptucha, M.S., Ph.D. Intern, administered the Millon Clinical Multiaxial Inventory-II to plaintiff, and diagnosed plaintiff with recurrent moderate major depression and an unspecified personality disorder, with schizoid and avoidant traits. A.R. 486-87. Ms. Ptucha opined:

[Plaintiff's] responses [to the test] were valid but guarded. She likely under-reports psychological symptoms due to either defensiveness, fear of disapproval or a lack of insight and introspection. She is not attempting to place herself in a favorable light, and she tends to depreciate or devalue herself. [¶] . . . [Plaintiff] likely exhibits some dependent behavior and will react to stress by withdrawing. She shows a lack of initiative, has a low self-concept, and views herself as weak, inadequate, and ineffectual. She tends to be socially alienated, is pervasively anxious, and may experience a state of chronic but moderate psychic stress. She is probably most comfortable when she is alone. Around others, she is passive, docile, respectful, and conforming. She is overly sensitive to rejection and hence views social situations as a source of anxiety. She is prone to separation anxiety and depression. Behaviorally, she is rigid, conscientious, polite, organized, meticulous, punctual, and often perfectionistic.

A.R. 487. On December 27, 2006, plaintiff took the Wechsler Adult Intelligence Scale, 3rd edition, scoring a full scale IQ of 90, which is in the average range. A.R. 484-85. Plaintiff performed better on tasks emphasizing her visual-motor processing speed than those emphasizing her nonverbal reasoning ability, and she scored much better on tasks that depend on verbal knowledge rather than on solving problems that depend on short-term auditory memory. A.R. 485.

On January 2, 2007, plaintiff experienced auditory hallucinations telling her it was unsafe to ride in a car with her brother because he would try to kill her, and Ms. Ptucha noted plaintiff was having "difficulty differentiating the truth/reality from what the voices say." A.R. 479. On January 30, 2007, after plaintiff had voiced concerns about the side effects of her medication, Dr. Schmid switched plaintiff's medications to Lexapro*fn6 and Seroquel.*fn7 A.R. 468-70. On February 28, 2007, Dr. Schmid noted plaintiff has poor focus and concentration and her medication causes sedation, slow processing and dizziness, and Dr. Schmid opined plaintiff is permanently disabled.

A.R. 368.

Between March 30 and April 3, 2007, plaintiff was involuntarily hospitalized at Riverside County Regional Medical Center ("RCRMC") under California Welfare & Institutions Code ("W.I.C.") § 5150,*fn8 after stating she was planning to kill herself by overdosing on medication.

A.R. 449-66, 493-513. Probir K. Paul, M.D., initially examined plaintiff and diagnosed her with recurrent major depression with psychotic features, and determined her GAF was 25.*fn9 A.R. 457-58. The plaintiff was treated with Cymbalta,*fn10 Seroquel and Ativan,*fn11 and when plaintiff was discharged, Debbie Rosario, M.D., diagnosed her as having a major depressive disorder, post-traumatic stress disorder, and an unspecified eating disorder, and determined her GAF was 51-55.*fn12 A.R. 449-50.

Between April 27 and May 2, 2007, plaintiff was again involuntarily hospitalized at RCMRC under W.I.C. §§ 5150 & 5250,*fn13 after she threatened to kill herself by walking into traffic. A.R. 430-48, 513-36. She was diagnosed with recurrent major depression, without psychotic features, and chronic post-traumatic stress disorder, and her GAF was determined to be 30 (highest past year 40).*fn14 A.R. 521-22, 536. The plaintiff was treated with psychotherapy and prescribed Seroquel, Cymbalta, and Topamax.*fn15 A.R. 515-16. When plaintiff was discharged from the hospital, she was found to be much improved, was no longer suicidal, her depression was under control, and her GAF was 55. A.R. 516.

On May 8, 2007, Dr. Schmid prescribed Topamax for plaintiff as a mood stabilizer. A.R. 401. On June 13, 2007, Dr. Schmid increased plaintiff's Cymbalta after noting plaintiff was depressed, her mood was blunted, she had a suicidal ideation, and she was rambling. A.R. 391. On July 2, 2007, Dr. Schmid again examined plaintiff and found she had a suicidal ideation, her attention and concentration were impaired, and she was rambling. A.R. 388. On September 6, 2007, Dr. Schmid opined plaintiff cannot complete a 40-hour work week without decompensating, and she cannot maintain a sustained level of concentration, sustain repetitive tasks for an extended period, adapt to new or stressful situations, or interact appropriately with family, strangers, co-workers, or supervisors/authority figures. A.R. 380. In reaching this conclusion, Dr. Schmid opined plaintiff's thought process is concrete, she has auditory hallucinations, psychotic symptoms influence plaintiff's behavior, her memory and judgment are moderately impaired, and plaintiff is anxious and depressed with suicidal ideation, decreased energy, apathy, and social withdrawal. Id.

On August 9, 2007, Reynaldo Abejuela, M.D., a psychiatrist, examined plaintiff and diagnosed her with an unspecified depressive disorder versus major depression, by history. A.R. 369-79. Dr. Abejuela found:

[Plaintiff's] mental status examination revealed some mild depression and mild anxiety. It appears that the medication is helping the [plaintiff]. She was noted to be articulate today, with no evidence of illogical thinking, no evidence of psychosis. She reported seeing and hearing things but she did not appear to be responding to internal stimuli. Reasoning and comprehension remain intact. Cognitive functioning is within normal. On formal testing, the [plaintiff] recalled 3/3 objects after three and five minutes and was able to do simple math. [¶] After reviewing the records and correlating those to the history and mental status examination today, my overall assessment is that there is no mental restriction in the [plaintiff's] occupational and social functioning.

A.R. 377. Dr. Abejuela also found plaintiff has no mental restriction in her daily activities, no repeated episodes of emotional deterioration in work-like situations, and no impairment in her ability to understand, remember and carry out simple instructions, she has "mild" difficulties maintaining social functioning and concentration, persistence, and pace, and she has "mild" impairment in her ability to: understand, carry out, and remember complex instructions; respond to co-workers, supervisors and the public; respond appropriately to usual work situations; and deal with changes in a routine work setting. A.R. 377-78. Dr. Abejuela concluded plaintiff's "psychiatric limitations are none to mild[,]" her psychiatric prognosis is "fair to good[,]" and "[i]t is expected that with continuous psychiatric medication, the [plaintiff's] psychiatric symptoms should abate in the next few months." A.R. 378.



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 May 26, 2005, the application date. (Step One). The ALJ then found plaintiff has severe impairments of fibromyalgia, controlled asthma, right wrist tendinitis, uterine fibroids (status post-hysterectomy), controlled hyperlipidemia, high myopia (status post-surgery in August 2004), and obesity; however, her depression is not severe. (Step Two). The ALJ next found plaintiff does not have an impairment or combination of impairments that meets or equals a Listing. (Step Three). The ALJ then determined plaintiff cannot perform her past relevant work. (Step Four). Finally, the ALJ found there are jobs that exist in significant numbers in the national economy that plaintiff can perform; therefore, she is not disabled. (Step Five).


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 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.

The ALJ found in Step Two that plaintiff does not have a severe mental impairment. A.R. 13. However, plaintiff contends this finding is not supported by substantial evidence because the ALJ failed to properly consider the opinion of Dr. Schmid, her treating psychiatrist. 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).

The ALJ found plaintiff's depression is not severe for several reasons. First, the ALJ found plaintiff's depression "has not lasted and is not expected to last 12 months[,]" and plaintiff "was not seen or treated until April 2007." A.R. 13. However, these findings are not correct. Rather, plaintiff received mental health treatment from DMH beginning in November 2006, and that treatment continued through, at least, the administrative hearing in October 2007. A.R. 449-66, 493-513, 553-54, 558-59, 562-64. Second, the ALJ noted that plaintiff "testified that her medications help her depression." A.R. 13. However, this also is not correct. Rather, when asked whether her medications help her depression, plaintiff stated that "[i]t helps for me not to go into the stage . . . of wanting to take a gun and shoot myself . . . [o]r throw myself into traffic." A.R. 553-54. Although, "[i]mpairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for SSI benefits[,]" Warre v. Comm'r of the Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006), the fact that medications help prevent a claimant from committing suicide is not the same thing as controlling a claimant's depression. Here, recent adjustments to plaintiff's medication clearly show her mental health problems are not controlled with medication, see, e.g., 388, 391, 401, 554, and Dr. Schmid's opinion confirms this. A.R. 380.

The ALJ rejected Dr. Schmid's opinion of September 6, 2007, because it "is quite conclusory, providing very little explanation of the evidence relied on in forming that opinion[.]" A.R. 16. Of course, "[t]he ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings[,]" Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Bray v. Astrue, 554 F.3d 1219, 1228 (9th Cir. 2009), but, here, Dr. Schmid's opinion was accompanied by 75 pages of medical records from DMH and another 79 pages of medical records from RCRMC. A.R. 382-536. Since Dr. Schmid's opinion cannot be separated from DMH's records, the ALJ's rationale is not a specific and legitimate reason for rejecting Dr. Schmid's opinion. See Lingenfelter v. Astrue, 504 F.3d 1028, 1037 n.8 (9th Cir. 2007) (Treating physician's opinions were adequately supported when record contains "more than 50 pages of medical reports and clinical findings based on three years of treatment and objective physical evidence, including X-rays, lab tests, physical examinations, and the diagnostic surgery that [the physician] himself performed.").

The ALJ also gave "little weight" to Dr. Schmid's opinion that plaintiff "was unable to complete a 40[-]hour workweek without decompensating" because "this is an issue reserved to the Commissioner." A.R. 16. However, this rationale also does not constitute a specific and legitimate reason for rejecting Dr. Schmid's opinion. See Reddick, 157 F.3d at 725 (The ALJ is "'not bound by the uncontroverted opinions of the claimant's physicians on the ultimate issue of disability, but he cannot reject them without presenting clear and convincing reasons for doing so.'" (citations omitted)); Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (same).

For all these reasons, the ALJ's failure to properly consider Dr. Schmid's opinion is legal error, and the Step Two finding is not supported by substantial evidence. Smolen, 80 F.3d at 1286.


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 to determine whether plaintiff has a severe mental impairment.*fn16 Webb, 433 F.3d at 688; Edlund, 253 F.3d at 1160.


IT IS ORDERED that: (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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