Opinion
MEMORANDUM OPINION AND ORDER OF REMAND
CHARLES F. EICK, Magistrate Judge.
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 May 12, 2008, seeking review of the Commissioner's denial of benefits. The parties filed a consent to proceed before a United States Magistrate Judge on June 26, 2008.
Plaintiff filed a motion for summary judgment on November 26, 2008. Defendant filed a motion for summary judgment on December 16, 2008. The Court has taken both motions under submission without oral argument. See L.R. 7-15; "Order, " filed May 14, 2008.
BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
Plaintiff asserts disability based primarily on alleged mental impairments. Dr. Townsend, an examining psychologist, diagnosed depressive disorder and opioid dependence, for Plaintiff reportedly has had a 26-year history of heroin dependence (Administrative Record ("A.R.") 368-69). Dr. Townsend rated Plaintiff's Global Assessment of Functioning ("GAF") at 45 and found significant functional limitations, but also opined that "[i]f not using drugs, [Plaintiff] would be able to complete a full day's work" (A.R. 362-64, 368-69).
The Administrative Law Judge ("ALJ") observed that "[t]he medical evidence indicates that [Plaintiff] has a major depressive disorder and a history of drug abuse" (Supplemental Administrative Record ("S.A.R.") 3). Nevertheless, the ALJ found that Plaintiff does not have any severe mental impairment, stating: "[t]he limitation suggested by Dr. Townsend would only apply if the claimant were using drugs" (S.A.R. 4).
STANDARD OF REVIEW
Under 42 U.S.C. section 405(g), this Court reviews the Commissioner's decision to determine if: (1) the Commissioner's findings are supported by substantial evidence; and (2) the Commissioner used proper legal standards. See Swanson v. Secretary , 763 F.2d 1061, 1064 (9th Cir. 1985).
DISCUSSION
Social Security Ruling ("SSR") 85-28 governs the evaluation of whether an alleged impairment is "severe":
Social Security rulings are binding on the Administration. See Terry v. Sullivan , 903 F.2d 1273, 1275 n.1 (9th Cir. 1990).
An impairment or combination of impairments is found not severe'... when medical evidence establishes only a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work... i.e., the person's impairment(s) has no more than a minimal effect on his or her physical or mental ability(ies) to perform basic work activities...
Great care should be exercised in applying the not severe impairment concept. If an adjudicator is unable to determine clearly the effect of an impairment or combination of impairments on the individual's ability to do basic work activities, the sequential evaluation process should not end with the not severe evaluation step.
If such a finding [of non-severity] is not clearly established by medical evidence, however, adjudication must continue through the sequential evaluation process. SSR 85-28 at 22-23.
See also Smolen v. Chater , 80 F.3d 1273, 1290 (9th Cir. 1996) (the severity concept is "a de minimis screening device to dispose of groundless claims").
In the present case, the medical evidence does not "clearly establish [ ]" the non-severity of Plaintiff's alleged mental impairments. "A GAF between 41 and 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Morgan v. Commissioner , 169 F.3d 595, 598 n.1 (9th Cir. 1999); see Castaneda v. Apfel, 2001 WL 210175 *3 (D. Or. Jan. 18, 2001) (GAF in this range "is indicative of a disabling level of impairments"). Dr. Townsend opined Plaintiff has more than minimal limitations on her ability to perform basic work activities (A.R. 362-64). To the extent the record contains conflicting evidence, any such conflicts do not "clearly establish" the non-severity of Plaintiff's alleged mental impairments.
In finding Plaintiff's alleged mental impairments non-severe, the ALJ appears improperly to have discounted Plaintiff's drug dependency at the severity stage of the sequential analysis. According to the Ninth Circuit, an ALJ "must first conduct the five-step inquiry without separating out the impact of alcoholism or drug addiction." Bustamante v. Massanari , 262 F.3d 949, 955 (9th Cir. 2001). By separating out the effects of Plaintiff's opioid dependency at the severity stage of the inquiry, the ALJ erred. See id. (error to determine the impact of substance abuse at the severity stage).
When a court reverses an administrative determination, "the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." INS v. Ventura , 537 U.S. 12, 16 (2002) (citations and quotations omitted). Remand is proper where, as here, additional administrative proceedings could remedy the defects in the decision. McAllister v. Sullivan , 888 F.2d 599, 603 (9th Cir. 1989); see generally Kail v. Heckler , 722 F.2d 1496, 1497 (9th Cir. 1984).
CONCLUSION
For all of the foregoing reasons, Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.
The Court has not reached any other issue raised by Plaintiff except insofar as to determine that a reversal with a directive for the payment of benefits would not be appropriate at this time.
LET JUDGMENT BE ENTERED ACCORDINGLY.