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Layshevich v. Astrue

August 9, 2010

STSIAPAN LAYSHEVICH, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gregory G. Hollows U.S. Magistrate Judge

ORDER

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"). For the reasons that follow, plaintiff's Motion for Summary Judgment is granted in part, the Commissioner's Motion for Summary Judgment is denied, and this matter is remanded to the ALJ for further findings as directed in this opinion. The Clerk is directed to enter judgment for plaintiff.

BACKGROUND

Plaintiff, born June 8, 1948, applied on November 16, 2006 for disability benefits. (Tr. at 26, 51.) Plaintiff alleged he was unable to work due to low back pain, chest pain, knee pain, and left leg pain and numbness. (Id. at 51.) In a decision dated July 23, 2008, ALJ L. Kalei Fong determined that plaintiff was not disabled. (Id. at 13-21.) The ALJ made the following findings:*fn1

1. The claimant has not engaged in substantial gainful activity since November 16, 2006, the application date (20 CFR 416.920(b) and 416.971 et seq.).

2. The claimant has the following medically determinable impairments: low back pain, left knee pain, and depression (20 CFR 416.920(c)). 3. The claimant does not have an impairment or combination of impairments that has significantly limited (or is expected to significantly limit) the ability to perform basic work-related activities for 12 consecutive months; therefore, the claimant does not have a severe impairment or combination of impairments (20 CFR 416.921).

4. The claimant has not been under a disability, as defined in the Social Security Act, since November 16, 2006 (20 CFR 416.920(c)), the date the application was filed. (Tr. at 13-21.)

ISSUES PRESENTED

Plaintiff has raised the following issue: Whether the ALJ's Step Two Finding was Error.

LEGAL STANDARDS

The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

ANALYSIS

Plaintiff contends that the ALJ refused to find plaintiff's back and leg pain, and carpal tunnel syndrome to be severe impairments at step two.

At the second step of the disability analysis, an impairment is not severe only if it "would have no more than a minimal effect on an individual's ability to work, even if the individual's age, education, or work experience were specifically considered." SSR 85-28. The purpose of step two is to identify claimants whose medical impairment is so slight that it is unlikely they would be disabled even if age, education, and experience were taken into account. Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 2287 (1987). "The step-two inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). At this step, the ALJ may decline to find a severe impairment "only if the evidence ...


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