The opinion of the court was delivered by: Stephen J. Hillman United States Magistrate Judge
I. INTRODUCTION This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under Title II and Title XVI, respectively, of the Social Security Act (Act). Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the undersigned. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The Plaintiff and the Defendant have filed their pleadings, the Defendant has filed the Certified Administrative Record (AR), and each party has filed its supporting brief.
On August 18, 2009, Plaintiff filed applications for DIB and SSI, alleging disability beginning March 1, 2009. (AR 122-132) On October 20, 2009, Plaintiff's applications were denied. (AR 75-76). On September 16, 2010, Plaintiff was afforded a hearing before an Administrative Law Judge (ALJ). (AR 41-74). On November 9, 2010, the ALJ issued a decision finding Plaintiff not disabled within the meaning of the Social Security Act. (AR 19-35). Plaintiff filed a request for review of the ALJ's decision on December 27, 2010. (AR 119). On March 12, 2012, the Appeals Council denied Plaintiff's request. Subsequently, on May 11, 2012, Plaintiff filed action for judicial review of the Commissioner's decision pursuant to 42 U.S.C. §405(g) and §1383(c).
Plaintiff makes two challenges to the ALJ's decision denying Plaintiff disability benefits, alleging (1) the ALJ failed to correctly assess whether Plaintiff suffered from severe mental impairment, and (2) the ALJ failed to properly evaluate Plaintiff's testimony. For the reasons discussed below, the Court finds Plaintiff's first claim of error is without merit, and second claim of error to have merit.
Plaintiff contends that the ALJ failed to assess Plaintiff's severe mental impairment, and that new evidence submitted after the ALJ's decision establishes that Plaintiff has a severe mental impairment. Defendant argues Plaintiff failed to establish a medically determinable mental impairment. Defendant further argues that evidence submitted to the Appeals Council following the ALJ's decision does not alter the ALJ's finding that Plaintiff does not have a severe mental impairment. Plaintiff's contention that the ALJ failed to assess Plaintiff's severe mental impairment is without merit, as the ALJ's determination that Plaintiff did not suffer from a severe mental impairment within the meaning of the Social Security Act was supported by substantial evidence.
1. The ALJ's Determination that Plaintiff Did Not Have a Severe Medically Determinable Mental Health Impairment was Properly Supported by Substantial Evidence
To qualify for disability benefits, it must be shown that Plaintiff has a "medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §423(d)(1)(A); 20 C.F.R. §§404.1505(a), 416.905(a). The Social Security Administration has established a five-step sequential evaluation process for determining whether an individual is disabled within the meaning of the Act. See 20 C.F.R. §404.1520. The second step requires that the ALJ determine whether the Plaintiff has a severe impairment. Id. This is a de minimus test intended to weed out the most minor of impairments. See, Bowen v. Yuckert, 482 U.S. 137, 107 S. Ct. 2287, 2299-2300 (1987) (O'Connor, J. concurring; see also Webb v. Barnhart, 433 F. 3d 683, 687 (9th Cir. 2005)(step two is a "de minimus threshold"); Smolen v. Chater, 80 F. 3d 1273, 1290(9th Cir. 1996). When evaluating whether a claimant has a medically determinable mental impairment, the ALJ must first evaluate the claimant's symptoms, signs, and laboratory findings. 20 C.F.R. §404-1520(b)(1).
In this case, the administrative record contained minimal evidence of a medically determinable mental impairment. Plaintiff asserts that the September 24, 2009 summary report of a psychiatric evaluation by Dr. Ernest Bagner, a consulting physician, establishes that Plaintiff has a severe mental impairment. In his decision, the ALJ duly noted that Dr. Bagner indicated that Plaintiff suffered a "[d]epressive disorder, not otherwise specified." (AR 27). However, the ALJ also noted Dr. Bagner's opinion was made "after one brief visit on September 24, 2009" and that he suggested the disorder may cause, at most, mild to moderate limitations -including in the areas of attention and concentration, and handling workplace stress. (AR 27, 320). In addition, Dr. Bagner indicated Plaintiff would have no limitations interacting with supervisors, peers, or the public. (AR 320). In his Functional Assessment, Dr. Bagner stated, "If patient receives psychiatric treatment, she should be significantly better in less than six months" (AR 319).
Relying on this information, the ALJ determined Plaintiff's condition was both amenable to treatment and unlikely to persist not less than 12 months. In addition, the ALJ pointed to the lack of any diagnosis from a treating source that corroborated the evidence. (AR 27). Dr. Bagner's observation that Plaintiff would have no limitations interacting with supervisors, peers, or the public, in spite of Plaintiff's depressive disorder-NOS, suggests that the impairment was not severe or more than minimally impactful upon her functional ability. The ALJ surmised that the minimal medical evidence available failed to support a medically determinable impairment, let alone a severe one.
Plaintiff also asserts that prior to the ALJ's decision she was treated with psychotropic medications by Olive View-UCLA Medical Center (AR 401, 421, 422). The ALJ made note of the prescribed medications, however, the ALJ also noted that the medication was prescribed to address pain management in relation to her lower back pain. The ALJ discussed that, in prescribing Effexor, one physician wrote it "may assist with her chronic pain issues" and did not indicate it was particularly prescribed to address Plaintiff's complaints of depression or anxiety. (AR 399). The same records from Olive View indicates at least one physician suggested to Plaintiff that she "attend community mental health if possible" (AR 421), however, there were no symptoms recorded in the documents. This conservative recommendation coupled with a lack of documented symptoms suggests that her symptoms were not severe.
In his decision, the ALJ also looked to statements made by the Plaintiff in making a determination that Plaintiff did not suffer from mental illness. In her testimony at the Administrative Hearing, the Plaintiff stated she had problems with memory, concentration and stress. (AR 43-74). The ALJ asked Plaintiff if she had ever been treated by a psychiatrist or a psychologist, to which Plaintiff replied that she had seen a counselor in 2005, 2004 or 1995, but had not been treated by a psychologist or psychiatrist (AR 66). In both Disability Report - Appeal forms, dated August 22, 2009 and November 14, 2009, Plaintiff indicated she had not seen and did not have plans to see a doctor/hospital/clinic or anyone else for emotional or mental problems that limit her ability to work (AR 148, 198). Referring again to the psychiatric evaluation ...