Summary
finding evidence of conversion disorder constituted a colorable claim of mental impairment
Summary of this case from Bukta v. J.C. Penney Co., Inc.Opinion
Argued and Submitted March 5, 2004.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the District of Oregon, Helen J. Frye, District Judge, Presiding.
Drew L. Johnson, Esq., Kathryn Tassinari, Esq., Drew L. Johnson, P.C., Eugene, OR, for Plaintiff-Appellant.
Craig J. Casey, Esq., Office of the U.S. Attorney, Portland, OR, David Burdett, Esq., Social Security Administration, Office of the General Counsel, Seattle, WA, for Defendant-Appellee.
Before MCKEOWN and FISHER, Circuit Judges, and GONZALEZ, District Judge.
The Honorable Irma E. Gonzalez, United States District Judge for the Southern District of California, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
The Administrative Law Judge ("ALJ") did not comply with the procedures required for the evaluation of mental impairments under 20 C.F.R. § 404.1520a. Because we conclude that this error was not harmless, we reverse the judgment of the district court and remand for proceedings consistent with this memorandum.
To evaluate a claim of disability based on mental impairment, the Commissioner is required to utilize a standard technique at the administrative hearing level in order to assist the Commissioner in (1) identifying the need for additional evidence, (2) considering and evaluating the functional consequences of the mental disorder on the claimant's ability to work and (3) organizing and presenting the facts. See 20 C.F.R. § 404.1520a(a). To ensure that the ALJ properly followed these procedures, the ALJ must incorporate "pertinent findings and conclusions based on the technique" in his written decision and "include a specific finding as to the degree of limitation in each of [four] functional areas." 20 C.F.R. § 404.1520a(e)(2).
The ALJ here did not incorporate "pertinent findings and conclusions" suggesting that he had properly followed these procedures. Failure to do so requires reversal if the plaintiff had a "colorable claim of a mental impairment." See Gutierrez v. Apfel, 199 F.3d 1048, 1051 (9th Cir.2000) (construing earlier version of § 1520a requiring that ALJ complete a psychiatric review technique form). "A colorable claim is one which is not 'wholly insubstantial, immaterial, or frivolous.' " McBride Cotton & Cattle Corp. v. Veneman, 290 F.3d 973, 981 (9th Cir.2002) (quoting Cassim v. Bowen, 824 F.2d 791, 795 (9th Cir.1987)). Evaluating psychologist Teri Strong, Ph.D., concluded that a diagnosis of conversion disorder or somatoform pain disorder might be appropriate, and that Dykstra might also suffer from "post traumatic stress-type symptoms." [ER 16, 329-30.] This evidence constituted a colorable claim of mental impairment, and therefore the ALJ was required to follow the procedures established in § 1520a.
The ALJ's noncompliance with § 1520a was not harmless because it resulted in his failure to consider adequately Dykstra's mental impairment at the latter steps of the evaluation, such as in determining (1) whether at step 3 Dykstra met or equaled one of the impairments listed in Appendix 1, Subpart P, Regulations No. 4; (2) Dykstra's residual functional capacity at step 4; and (3) the hypothetical he posed to the vocational expert at step 5. See 20 C.F.R. § 404.1520 (listing five-step evaluation process). The ALJ also utilized Dykstra's mental impairment as a means of discrediting Dykstra's claims of pain and--as the ALJ did not make findings and conclusions in accordance with § 1520a--we cannot determine whether substantial evidence supports this determination.
On remand, the ALJ must evaluate Dykstra's mental impairment using the procedures set out at 20 C.F.R. § 1520a and must perform the subsequent steps of the analytical process, particularly steps 3, 4 and 5, in light of the new mental impairment evaluation. If the ALJ concludes that the record is inconsistent, ambiguous or insufficient to determine the extent of Dykstra's mental impairment, a new psychiatric examination may be required. See 20 C.F.R. §§ 404.1519a(b)(4), 416.919a(b)(4); see also Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir.1996) ("In Social Security cases the ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered.").
The judgment of the district court is reversed and the case is remanded with instructions to remand the matter to the Commissioner for proper evaluation and documentation of Dykstra's mental impairments
Page 451.
and their effect on Dykstra's claim of disability.
REVERSED and REMANDED.