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Ramsey Thompson v. Michael J. Astrue

October 2, 2012

RAMSEY THOMPSON,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

MEMORANDUM OPINION AND ORDER OF REMAND

Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.

PROCEEDINGS

Plaintiff filed a complaint on February 29, 2012, seeking review of the Commissioner's denial of disability benefits. The parties filed a consent to proceed before a United States Magistrate Judge on March 13, 2012. Plaintiff filed a motion for summary judgment on August 1, 2012. Defendant filed a cross-motion for summary judgment on August 31, 2012. The Court has taken the motions under submission without oral argument. See L.R. 7-15; "Order," filed March 5, 2012.

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

Plaintiff, a former nurse's aide, asserts disability since February 1, 2004, based on alleged "depression, visual hallucinations, anxiety, psych issues and hyernia [sic]" (Administrative Record ("A.R.") 33, 52, 138, 145, 170). The Administrative Law Judge ("ALJ") determined that Plaintiff suffers from severe "drug induced psychosis with schizoaffective features," "personality disorder with antisocial features," and a "history of polysubstance dependence up to 2008" (A.R. 12 (adopting medical expert testimony at A.R. 49-50)). The ALJ found that Plaintiff retains the residual functional capacity to perform work at all exertion levels, limited to "moderately complex tasks up to 4 to 5 steps in an object oriented environment, [no being] in charge of safety operations, and no operating hazardous machinery" (A.R. 13 (adopting medical expert testimony at A.R. 50)). The ALJ found that, with this capacity, Plaintiff could perform jobs as a hand packager or product assembler, and therefore was not disabled (A.R. 19 (adopting vocational expert testimony at A.R. 53)). The Appeals Council denied review (A.R. 1-3).

In finding Plaintiff not disabled, the ALJ acknowledged that the consultative examining psychiatrist, Dr. Ernest Bagner III, opined Plaintiff would have, inter alia, "mild to moderate limitations handling normal stresses at work and completing a normal workweek without interruption." See A.R. 16-17 (summarizing Dr. Bagner's evaluations at A.R. 335-38, 439-42). The ALJ did not state explicitly whether the ALJ accepted or rejected Dr. Bagner's opinions regarding these specific limitations. In adopting the medical expert's residual functional capacity opinion, the ALJ stated only that "the consultative examiner found similar limitations" (A.R. 18).

Plaintiff argues that, in determining Plaintiff's residual functional capacity, the ALJ failed to consider properly Dr. Bagner's "mild to moderate" limitations. See Plaintiff's Motion, pp. 3-4. Plaintiff suggests that the ALJ implicitly rejected these limitations without stating sufficient reasons for doing so. Id. Defendant argues that there is no evidence that the ALJ rejected Dr. Bagner's opinions. Defendant's Motion, p. 4. Defendant also argues that Plaintiff has not demonstrated any inconsistency between Dr. Bagner's opinions and the ALJ's residual functional capacity assessment. Id.

STANDARD OF REVIEW

Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006).

DISCUSSION

The extent to which the ALJ accepted or rejected Dr. Bagner's opinions is unclear. As noted above, the ALJ stated only that Dr. Bagner found limitations "similar" to those the ALJ adopted from the medical expert. See A.R. 18. As discussed below, it is unclear whether Dr. Bagner's limitations are, in fact, "similar" to those the ALJ adopted from the medical expert.

I. Summary of Dr. Bagner's Examinations, State Agency Physician Review, and the Medical Expert's Related Testimony.

Dr. Bagner examined Plaintiff twice. See A.R. 335-38 (April 29, 2009 psychiatric evaluation), A.R. 439-42 (February 23, 2010 psychiatric evaluation). During the April 2009 examination, Plaintiff reported that he quit using methamphetamine two years earlier (A.R. 336). Dr. Bagner diagnosed Plaintiff with a mood disorder, not otherwise specified, and indicated a need to rule out anti-social personality disorder (A.R. 337). Dr. Bagner assigned a GAF score of 71,*fn1 and opined that Plaintiff: (1) would have no limitations interacting with supervisors, peers, or the public; (2) would have zero to mild limitations maintaining concentration and attention or completing simple tasks; (3) would have mild limitations completing complex tasks; and (4) would have mild to moderate limitations handling ...


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