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Debra Moruzzi v. Michael J. Astrue

November 5, 2012


The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge


Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for disability insurance benefits and supplemental security income benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

Plaintiff alleges that she became disabled on September 29, 2006 due to major depressive disorder, anxiety, hypothyroidism, arthritis, osteoarthritis of the right foot, bone spurs, fatigue, chronic pain, and obesity. [JS 2; Administrative Record ("AR") 8, 174]. After her applications were finally denied [AR 564-575], plaintiff filed an action for judicial review, which resulted in an order and judgment reversing the Commissioner's decision denying benefits and remanding the case for further administrative proceedings. [AR 576-586]. On remand, the Appeals Council vacated the Commissioner's denial of benefits and remanded the case to an administrative law judge ("ALJ") for further proceedings consistent with the remand order. [AR 589-590].

On remand, the ALJ conducted two supplemental hearings and issued a new decision denying benefits. [AR 462-471, 514-554, 555-563]. The ALJ found that plaintiff retained the residual functional capacity ("RFC") to perform a restricted range of medium work, as described in more detail in his decision. [AR 467]. The ALJ further found that plaintiff could not perform her past relevant work, but that her RFC did not preclude performance of the alternative medium, unskilled jobs identified by the vocational expert. [AR 469-471]. The ALJ's decision on remand constitutes the Commissioner's final decision with respect to plaintiff's benefits applications. See 20 C.F.R. §§ 404.984(a), 416.1484(a).

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r, Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Social Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)).


Remand order

Plaintiff contends that the ALJ contravened the remand order by failing properly to assess the medical opinion evidence, the lay witness testimony, and the vocational expert's testimony. [See JS 3-33].*fn1

The remand order directed the Commissioner to give plaintiff the opportunity for a new hearing and to issue a new hearing decision with appropriate findings. [AR 586]. The ALJ conducted two supplemental hearings on remand and issued a new decision denying benefits. Accordingly, the ALJ complied with the remand order. The controlling question in this action is whether the ALJ's decision on remand is supported by substantial evidence and is free of legal error. See Strauss v. Comm'r of the Social Sec. Admin., 635 F.3d 1135, 1137 (9th Cir. 2011) (holding that the district court erred in awarding benefits due to the ALJ's noncompliance with its remand order without reaching the merits of the ALJ's disability determination).

Treating psychiatrist

Plaintiff contends that the ALJ did not properly evaluate the opinion of her treating psychiatrist, Jesse R. Devera, M.D. [See JS 3-9].

The record indicates that plaintiff began seeing Dr. Devera at Lucerne Valley Counseling, a San Bernardino County Department of Behavioral Health ("County Behavioral Health") clinic, in May 2005. Her diagnosis was major depressive disorder, recurrent, severe, without psychotic features. Dr. Devera prescribed antidepressant medications, including Lexapro and Cymbalta. [AR 37-38, 229-234, 255-266, 269-276, 374-384, 425-448].

In June 2005, shortly after she started seeing Dr. Devera, plaintiff was admitted to Arrowhead Regional Medical Center ("ARMC") "with suicidal ideas, impaired judgment, hopelessness, anxiety, and irritability." [AR 320; see AR 316-337]. She told the attending physician that she was overwhelmed with depression related to her responsibilities as the adoptive parent of her 3- and 5-year-old grandchildren, who were the children of her drug-addicted daughter, and as the caretaker of another adult daughter, who was brain-injured and wheelchair-bound. [AR 327-329, 332]. Plaintiff received five days of inpatient care at ARMC. [AR 9, 327-337, 380].

Plaintiff's discharge summary states that her diagnosis was major depressive disorder, recurrent, severe. The attending physician stated that her mood had been stabilized with medications, and she also had been treated for symptomatic allergies and a urinary tract infection. Plaintiff had participated in group therapy and "did well" with it. She was discharged in "improved" condition, without suicidal ideation or psychosis. She was prescribed Lexapro, Klonopin, Wellbutrin, and Seroquel for her psychiatric condition and was instructed to follow up at a County Behavioral Health clinic [AR 320-321].

In July 2005, plaintiff returned to Dr. Devera for follow-up, and she continued to see him monthly until December 2007. [See AR 37-38, 229-234, 255-266, 269-276, 374-384, 425-448]. In December 2007, Dr. Devera completed a "Work Capacity Evaluation (Mental)" checklist form indicating that plaintiff had "moderate" or "marked" limitations in all of the work-related mental functional abilities listed on the form. ...

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