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Rivera v. Astrue

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


January 20, 2010

ETIAN RIVERA, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Robert N. Block United States Magistrate Judge

ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS

The Court now rules as follows with respect to the seven disputed issues listed in the Joint Stipulation.*fn1

The Court's determination of whether the Administrative Law Judge ("ALJ") properly found at Step Two of the Commissioner's sequential evaluation process that plaintiff's borderline intellectual functioning was not a severe mental impairment (i.e., Disputed Issue No. 5) turns on whether the ALJ failed to properly consider the treating psychiatrist's opinion (i.e., Disputed Issue No. 1), failed to properly consider the school psychologist's findings (i.e., Disputed Issue No. 2), failed to properly consider the consultative examiner's opinion (i.e., Disputed Issue No. 3), failed to properly consider the State Agency physician's findings (i.e., Disputed Issue No. 4), and/or failed to properly consider the treating clinician's opinion (i.e., Disputed Issue No. 6), insofar as those opinions and/or findings supported a finding that plaintiff's borderline intellectual functioning had more than a minimal effect on the claimant's mental ability to perform basic work activities. See 20 C.F.R. § 416.921(a). Basic mental work activities include 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. See 20 C.F.R. § 416.921(b); Social Security Ruling*fn2 ("SSR") 85-28.

For the reasons stated by the Commissioner (see Jt Stip at 8-9, 20-21), the Court finds and concludes that reversal is not warranted based on the ALJ's alleged failure to properly consider the school psychologist's findings (i.e., Disputed Issue No. 2) or the ALJ's alleged failure to properly consider the treating clinician's opinion (i.e., Disputed Issue No. 6).

With respect to Disputed Issue No. 1, the Court finds that Dr. Kinsback's assessment of plaintiff's current GAF in his initial psychiatric evaluation conducted on September 18, 2007 was not probative of whether plaintiff had a severe mental impairment; indeed, Dr. Kinsback did not even purport to render an opinion on plaintiff's highest GAF during the past year. (See AR 321). Further, as the ALJ noted, "neither [Dr. Kinsback's] report nor the medical evidence of record as a whole indicates ongoing symptoms, signs, or findings consistent with any medically determinable depressive disorder or with severe mental impairments." (See AR 21).

The Court finds that the ALJ thus did state a legally sufficient reason, supported by the evidence of record, for not crediting Dr. Kinsback's GAF assessment, insofar as that assessment could be construed as meaning that plaintiff's borderline intellectual functioning had more than a minimal effect on plaintiff's mental ability to perform basic work activities. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (holding that "[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"); see also Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1195 (9th Cir. 2004) (noting that "an ALJ may discredit treating physicians' opinions that are conclusory, brief, and unsupported by the record as a whole, . . . or by objective medical findings").

However, with respect to Disputed Issue No. 3, the Court concurs with plaintiff that the ALJ erred in failing to credit Dr. McGee's opinion that plaintiff was limited to routine, repetitive or simple tasks. Contrary to the ALJ's stated rationale for rejecting that opinion (see AR 21), Dr. McGee's report reflects that his opinion was based on his clinical findings and his interpretation of the tests that he administered during his extensive evaluation. (See AR 231-36).

Moreover, with respect to Disputed Issue No. 4, the Court concurs with plaintiff that the ALJ erred in failing to credit the State Agency physician's opinion that plaintiff was moderately limited in the ability to understand and remember detailed instructions, carry out detailed instructions, and maintain attention and concentration for extended periods. (See AR 240 (emphasis added)). The ALJ implied that the State Agency physician's opinion was contradicted by Dr. McGee's findings on mental status examination. (See AR 21, citing AR 233). The Court disagrees.

Based on the Court's findings that the ALJ erred in failing to credit the opinions of Dr. McGee and the State Agency physician, the Court is unable to find or conclude that the ALJ's finding of non-severity was "clearly established by medical evidence." Thus, it is unnecessary to determine at this juncture whether the ALJ erred in failing to obtain the testimony of a vocational expert regarding plaintiff's non-exertional limitations (i.e., Disputed Issue No. 7). Rather, adjudication must continue through the sequential evaluation process. See SSR 85-28; SSR 96-3p; see also Yuckert v. Bowen, 841 F.2d 303, 306-07 (9th Cir. 1988); McDonald v. Secretary of Health & Human Svcs., 795 F.2d 1118, 1124-25 (1st Cir. 1986).

Accordingly, pursuant to sentence four of 42 U.S.C. § 405(g), IT IS HEREBY ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings.*fn3


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