The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge
MEMORANDUM OPINION AND ORDER (Social Security Case)
This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the Administrative Record ("AR") before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified AR.
Plaintiff raises the following issues:
1. Whether the Administrative Law Judge ("ALJ") erred in rejecting the opinion of Plaintiff's treating psychiatrist; and
2. Whether the ALJ failed to provide clear and convincing reasons to reject Plaintiff's subjective complaints.
This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that for the reasons set forth, the decision of the Commissioner must be reversed and the matter remanded.
THE ALJ ERRED AT STEP TWO IN FINDING THAT PLAINTIFF DOES NOT SUFFER FROM A SEVERE MENTAL IMPAIRMENT
In her first issue, Plaintiff asserts that the ALJ erred in rejecting the opinions of her treating psychiatrist, Dr. Alexanian, as to her mental functional restrictions, and instead erroneously accepted the opinion of a one-time consultative examiner and a non-examining State Agency physician.
At Step Two of the sequential evaluation process (see below), the ALJ found that although Plaintiff has a medically determinable impairment of mental depression, that impairment "does not provide any limitations on the claimant's daily living activities, social functioning, or ability to maintain concentration, persistence and pace. It has not caused any episodes of decompensation of extended duration. This is not a severe impairment." (AR 22.)
The ALJ acknowledged that Plaintiff had been treated by Dr. Alexanian of MCLA Psychiatric Medical Group from July 2008 into 2009,but rejected Dr. Alexanian's conclusions as inconsistent with both his treatment notes and with Plaintiff's own function report, in which she described engaging in a wide range of activities of daily living ("ADL"). (AR 22-23.) The ALJ instead relied upon and accepted the results of a complete psychiatric examination ("CE") performed in January 2009 by Dr. Bagner (AR 356-359), and the supporting opinion of a non-examining State Agency physician, Dr. Brooks (AR 23-24), who found that Plaintiff's ADLs were not restricted, and that she had no difficulties in maintaining social functioning, or in the areas of concentration, persistence and pace.
The Ninth Circuit has clearly articulated that an impairment or combination of impairments may be found to be not severe if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). Moreover, the Commissioner has stated in Social Security Ruling ("SSR") 85-28 (1985) that "[I]f an adjudicator 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 with the non-severe evaluation step." Thus, it is well understood that step two is a "de minimis screening device [used] to dispose of groundless claims," Smolen, 80 F.3d at 1290. An ALJ may only find that a claimant lacks a medically severe impairment or combination of impairments when the conclusion to that effect is "clearly established by medical evidence." SSR 85-28. Further, while a ...