DIANA L. STEWART, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION ON PLAINTIFF'S COMPLAINT
J. RICHARD CREATURA, Magistrate Judge.
This matter has been referred to United States Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1) and Local Magistrate Judge Rule MJR 4(a)(4), and as authorized by Mathews, Secretary of H.E.W. v. Weber, 423 U.S. 261, 271-72 (1976). This matter has been fully briefed ( see ECF Nos. 15, 16, 17).
After considering and reviewing the record, the Court finds that the ALJ did not evaluate properly plaintiff's alleged mental impairments. He erroneously found that plaintiff was not diagnosed with any mental impairment until January, 2010, when in fact, plaintiff was diagnosed with at least one mental impairment multiple times by multiple doctors before January, 2010. In addition, the ALJ failed to document application of the special technique required for evaluating mental impairments. For these reasons, and based on the relevant record, the Court concludes that this matter should be reversed and remanded for further proceedings.
Plaintiff, DIANA L. STEWART, was born in 1953 and was 52 years old on the alleged date of disability onset of January 1, 2006 ( see Tr. 90, 137, 142, 225, 234). Plaintiff completed her Business Office Technology Degree in August 2008 (Tr. 143). Plaintiff has worked as a census taker for the Department of Commerce, a field interviewer for the Department of Agriculture, in the warehouse for Sees Candy and a temporary position through an agency (Tr. 253). For about 6 ½ years before attending college, plaintiff was a caregiver for two children who had behavior and emotional problems (Tr. 151).
Plaintiff has at least the severe impairments of "sleep apnea, mild coronary artery disease, and right shoulder adhesive capsulitis (20 CFR 404.1520(c))" (Tr. 92). Plaintiff also claims that she has a severe mental impairment of PTSD and major depressive disorder, among other alleged severe impairments ( see ECF No. 15, Page 10). The ALJ provided his initial impression at plaintiff's administrative hearing as follows:
[W]hat I get from this case is we have a lady who has a history of abuse; both as a child and as an adult, and that she has some residuals from that abuse, which has caused her some problems. It looks like she does have attempts at college and work study, and I'd like to know what that was, and how well it went. She's got some sleep apnea problems. (Tr. 140).
Plaintiff subsequently directed the ALJ's attention to her depression, which plaintiff alleged had been "severe and ongoing since her onset date" (Tr. 141).
Plaintiff filed an application for disability insurance ("DIB") benefits pursuant to 42 U.S.C. § 423 (Title II) of the Social Security Act in October, 2007 ( see Tr. 90, 225-32). The application was denied initially and following reconsideration (Tr. 90, 173-75, 179-83). Plaintiff's requested hearing was held before Administrative Law Judge Thomas Robinson ("the ALJ") on May 5, 2010 ( see Tr. 135-170). On June 11, 2010, the ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act ( see Tr. 87-102).
On August 21, 2012, the Appeals Council denied plaintiff's request for review, making the written decision by the ALJ the final agency decision subject to judicial review (Tr. 41-43). See 20 C.F.R. § 404.981. Plaintiff filed a complaint in this Court seeking judicial review of the ALJ's written decision in October, 2012 ( see ECF Nos. 1, 4). Defendant filed the sealed administrative record regarding this matter ("Tr.") on February 12, 2013 ( see ECF Nos. 10, 11).
In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Whether or not the ALJ properly evaluated the medical evidence; (2) Whether or not the ALJ properly evaluated plaintiff's testimony; (3) Whether or not the ALJ properly evaluated the lay evidence; (4) Whether or not the ALJ properly assessed plaintiff's residual functional capacity; (5) Whether or not the ALJ erred in basing his step five finding on the Medical-Vocational Guidelines and by failing to take testimony from a vocational expert; and (6) Whether or not the new evidence that was submitted to the Appeals Council shows that the ALJ's decision was not supported by substantial evidence and/or was based on legal error ( see ECF No. 15, pp.1-2).
STANDARD OF REVIEW
Plaintiff bears the burden of proving disability within the meaning of the Social Security Act (hereinafter "the Act"); although the burden shifts to the Commissioner on the fifth and final step of the sequential disability evaluation process. See Bowen v. Yuckert, 482 U.S. 137, 140, 146 n. 5 (1987). The Act defines disability as the "inability to engage in any substantial gainful activity" due to a 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 twelve months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant is disabled pursuant to the Act only if claimant's impairment(s) are of such severity that claimant is unable to do previous work, and cannot, considering the claimant's age, education, and work experience, engage in any other substantial gainful activity existing in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) ( citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). "Substantial evidence" is more than a scintilla, less than a preponderance, and is such "relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) ( quoting Davis v. Heckler, 868 F.2d 323, 325-26 (9th Cir. 1989)). Regarding the question of whether or not substantial evidence supports the findings by the ALJ, the Court should "review the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion.'" Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) ( citing Magallanes, supra, 881 F.2d at 750).
In addition, the Court must independently determine whether or not "the Commissioner's decision is (1) free of legal error and (2) is supported by substantial evidence.'" See Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2006) ( citing Moore v. Comm'r of the Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002) (collecting cases)); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) ( citing Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985)). According to the Ninth Circuit, "[l]ong-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and actual findings offered by the ALJ - not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking." Bray v. Comm'r of SSA, 554 F.3d 1219, 1225-26 (9th Cir. 2009) ( citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (other citation omitted)); see also Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) ("we may not uphold an agency's decision on a ground not actually relied on by the agency") ( citing Chenery Corp, supra, 332 U.S. at 196). In the context of social security appeals, legal errors committed by the ALJ may be considered harmless where the error is irrelevant to the ultimate disability conclusion when considering the record as a whole. Molina, supra, 674 F.3d at 1117-1122; see also 28 U.S.C. § 2111; Shinsheki v. Sanders, 556 U.S. 396, 407 (2009).
(1) Whether or not the ALJ properly evaluated the medical evidence.
Among other things, plaintiff challenges the ALJ's step two finding that she did not suffer from the severe mental impairments of depression and PTSD (among other alleged severe impairments). Defendant contends that the ALJ's step two findings were proper, and alternatively argues that at most, the ALJ committed harmless error.
Step-two of the administration's evaluation process requires the ALJ to determine if the claimant "has a medically severe impairment or combination of impairments." Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 1996) (citation omitted); 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii) (1996). The Administrative Law Judge "must consider the combined effect of all of the claimant's impairments on her ability to function, without regard to whether [or not] each alone was sufficiently severe." Smolen, supra, 80 F.3d at 1290 (citations omitted).
An impairment is "not severe" if it does not "significantly limit" the ability to conduct basic work activities. 20 C.F.R. §§ 404.1521(a), 416.921(a). Basic work activities are "abilities and aptitudes necessary to do most jobs, " including, for example, "walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling; capacities for seeing, hearing and speaking; understanding, carrying out, and remembering simple instructions; use of judgment; responding appropriately to supervision, co-workers and usual work situations; and dealing with changes in a routine work setting." 20 C.F.R. § 404.1521(b). "An impairment or combination of impairments can be found not severe' only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual[']s ability to work.'" Smolen, supra, 80 F.3d at 1290 ( quoting Social Security Ruling "SSR" 85-28) ( citing Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988)).
According to Social Security Ruling 96-3b, "[a] determination that an individual's impairment(s) is not severe requires a careful evaluation of the medical findings that describe the impairment(s) ( i.e., the objective medical evidence and any impairmentrelated symptoms), and an informed judgment about the limitations and restrictions the impairments(s) and related symptom(s) impose on the individual's physical and mental ability to do basic work activities." SSR 96-3p, 1996 SSR LEXIS 10 at *4-*5 ( citing SSR 96-7p). If a claimant's impairments are "not severe enough to limit significantly the claimant's ability to perform most jobs, by definition the impairment does not prevent the claimant from engaging in any substantial gainful activity." Bowen, supra, 482 U.S. at 146.
The ALJ failed to find that plaintiff suffered from any severe mental impairment and specifically failed to find that plaintiff's depression or her post traumatic stress disorder ("PTSD") were severe impairments, because he found that "there is no mental health diagnosis by an acceptable medical source in the record until the claimant began formal mental health treatment in January 2010 at Cascade Mental Health" (Tr. 95 ( citing Exhibits 17F; 18F; 20 C.F.R. §§ 404.1513(a), 416.913(a); Social Security Ruling, SSR 06-3p)).
However, this very important finding of fact by the ALJ is not supported by substantial evidence in the record. Although the ALJ relied on a finding that there was not a "mental health diagnosis by an acceptable medical source in the record until" 2010, over six years prior to that, on May 20, 2003, Dr. James Yoon, D.O., indicated that he "suspect[ed] some level of depression" ( see Tr. 351). In September, 2005, Dr. Jong-Wook Ban, M.D., similarly assessed plaintiff with "at least moderate symptoms of depression" and noted that plaintiff "burst into tears" ( see Tr. 406). Furthermore, subsequently, Dr. Ban continued to list depression as one of plaintiff's assessed diagnoses in November, 2005 ( see Tr. 403).
As observation of a plaintiff's symptoms, affect, behavior and mood by a medical doctor following examination, with a resultant diagnosis of a mental impairment, is a diagnosis of a medically determinable impairment by an acceptable medical source: the ALJ's finding to the contrary is not supported by substantial evidence in the record.
After a referral from Dr. Ban, and following her own independent examination, Dr. Katherine M. Hogg, M.D., on November 1, 2005, indicated in a follow-up letter that plaintiff "undoubtedly has disrupted sleep related to fibromyalgia, chronic pain and a mood disorder" (Tr. 383; see also Tr. 382 ("mood disorder is also quite likely")).
After plaintiff's alleged onset date of January 1, 2006, plaintiff's mental health therapist, Jeanette Revay, ARNP, on April 10, 2006, conducted an intake examination, diagnosed plaintiff with major depressive disorder and prescribed her Zoloft ( see Tr. 513). Following her mental status examination ("MSE") of plaintiff, Ms. Revay ...