The opinion of the court was delivered by: Ralph Zarefsky United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
After Plaintiff Carol Faye Teitelbaum underwent a hysterectomy in 2007, she progressively developed, she says, an acute sensitivity to her environment. She claims to suffer pain from being around electricity and chemicals, and this condition, she asserts, has made her unable to act as a court reporter as she used to do, or in fact to do any regular job. Her friends and family have told her she is nuts, and they recommended that she see a psychiatrist. A psychologist found that she was depressed as a result of her condition. [AR 297] Having no other avenue to pursue, she filed for disability under the Social Security system; the Administrative Law Judge denied her claim.
The Administrative Law Judge found that the only impairment she had was depression, not otherwise specified, with anxiety features. [AR 16] He stated that Plaintiff's testimony alone could not establish a severe impairment, and that there was little objective evidence of her claimed impairment of multiple chemical sensitivity. [AR 19]
He discredited the doctor who made such a diagnosis [AR 20], and, relying on testimony from the vocational expert, he found that, while Plaintiff no longer could function as a court reporter, she could either mark items for sale at a department store or make sandwiches in a restaurant. [AR 21] Hence, he concluded, she was not disabled.
In this Court, Plaintiff raises a number of errors, centered around Plaintiff's assertion that she has become unusually sensitive to electricity and chemicals. The diagnosis of a multiple chemical sensitivity is a tricky one, because it is, by its very nature, idiosyncratic and difficult to assess objectively. Still, it is a known diagnosis, having an associated insurance and diagnostic code, and is referenced in several cases. See, e.g., Wall v. Astrue, 2010 WL 2757514 (C.D. Cal. 2010); Owen v. Astrue, 2011 WL 588048 (N.D. Tex. 2011); and Brandenburg v. Astrue, 2010 WL 2621254 (S.D. Oh. 2010). Sometimes it is likened to chronic fatigue syndrome for its mysteriousness and elusiveness. The problem for the Social Security system is how to fit it into the normal sequential evaluation, mindful in particular of Congress' command that disability cannot be established solely on the basis of an individual's statement as to pain or other symptoms.
A decision of the Administrative Law Judge is to be affirmed if it is backed by substantial evidence and free of legal errors. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). Under the law of this circuit, and most circuits, an Administrative Law Judge must give deference to the opinions of treating physicians, and even sometimes give controlling weight to those opinions. Holohan v. Massanari, 246 F.3d 1195, 1201-1203 (9th Cir. 2001). The opinions of consulting physicians also deserve respect, but they do not rank as high on the hierarchy as do those of treating physicians. Id.
At Step Two of the Sequential Evaluation, an administrative law judge must determine if the claimant has a severe impairment. The regulations do not define a "severe" impairment. Instead, they state what a non-severe impairment is: one that does not significantly limit physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1521, 416.921. The basic work activities are "the abilities and aptitudes necessary to do most jobs," including various physical and mental activities. Id. The requirement of having a severe impairment performs a gate-keeping function, screening out frivolous complaints. Bowen v. Yuckert, 482 U.S. 137, 153 (1987). In its internal procedures, the Social Security Administration assesses an impairment as "non-severe" if it has no more than a minimal effect on the individual's ability to do basic work functions. SSR 85-2. The minimal nature of this requirement, according to the Commissioner's internal procedures is stated quite directly:
The Commissioner has stated 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 not severe evaluation step." S.S.R. No. 85-28 (1985). Step two, then, is a "de minimis screening device [used] to dispose of groundless claims," Smolen, 80 F.3d at 1290, and an ALJ may find that a claimant lacks a medically severe impairment or combination of impairments only when his conclusion is "clearly established by medical evidence." S.S.R. 85-28."
Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). This minimalist treatment has received the Courts' imprimatur. Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988); Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). Thus, the requirement that a claimant have a severe impairment has been transmogrified into a requirement that the claimant have an impairment that is not very severe at all - it simply must have more than a minimal effect on his or her ability to do basic work functions. When the Commissioner rests his decision on the failure to satisfy the severity requirement, that decision, as with any other, must rest on substantial evidence within the record. Smolen v. Chater, supra, 80 F.3d at 1289-90.
The Administrative Law Judge here did not find that Plaintiff had a severe impairment based on multiple chemical syndrome. This is curious, because he found that Plaintiff was depressed, but the evidence of her depression came from a psychologist, who found that she was depressed because of her medical condition of being overly sensitive to her environment. [AR 297] At the same time, however, the psychologist gave no indication that Plaintiff was in any way irrational in feeling such depression as a result of her condition.
The Administrative Law Judge stated that an impairment cannot be found on the basis of a claimant's say-so [AR 19], and in this Court the Commissioner reiterates that the statute prohibits the finding of an impairment based solely on the subjective complaints of a claimant. 42 U.S.C.§ 423(d)(5)(A). While this is true, the Administrative Law Judge committed the same mistake the Courts have found when chronic fatigue syndrome is involved: "The ALJ erred by 'effectively requir[ing]"objective" evidence for a disease that eludes such measurement.'" Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004), citing Green Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir. 2003). While there was not evidence here that could be measured in the way that blood pressure can be measured, there was, in fact, not only the testimony of the claimant, but two other kinds of evidence as well: the treating physicians' assessments, and the testimony of third-party law witnesses.
As for the treating physicians, "[d]isability may be proved by medically-acceptable clinical diagnoses, as well as by objective laboratory findings." Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). In light of this law, the discrediting of the treating physician's assessments, at least insofar as the presence of a severe impairment was concerned, was not sufficient. The Administrative Law Judge discredited treating physician Dr. Bernhoft for two reasons. First, he said that she had not been specific in describing things to which Plaintiff was sensitive. [AR 20] This was not correct; Dr. Bernhoft identified at least chemicals, scents, molds, electrical stimuli and fluorescent lights as stimuli to which Plaintiff was unusually sensitive. [AR 168] Second, the Administrative Law Judge thought it inconsistent for the physician to have opined that, as a result of Plaintiff's hypersensitivity to her environment, Plaintiff would be precluded from traveling in cars, whereas Plaintiff regularly drove. [AR 20] Plaintiff's driving capabilities, however, were not explored in any nuanced way; for example, she never was asked whether, even though she could drive, it was difficult to drive; or whether there was any progression to sensitivity to being in a car, as there had been with sensitivity to other situations; she did, however, testify that it was difficult to be in traffic with the attendant exhaust and fumes. [AR 29] Thus, even though Plaintiff could and did drive, it is not clear, therefore, that the inconsistency the Administrative Law Judge fastened on was much of an inconsistency, and if it was, it was blown out of proportion, and not a sufficient basis for discrediting the physician.
Dr. Heuser also rendered an opinion that Plaintiff suffered from this syndrome. [AR 348] The Administrative Law ...