The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge
MEMORANDUM OPINION AND ORDER (Social Security Case)
This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the Administrative Record ("AR") before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified AR.
Plaintiff raises the following issues:
1. Whether the Administrative Law Judge ("ALJ") erred in failing to find that Plaintiff's headaches were a severe impairment; and
2. Whether the ALJ failed to include all of the mental limitations assessed by the consultative examiner in his residual functional capacity.
This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that for the reasons set forth, the decision of the Commissioner must be reversed.
I. THE ALJ ERRED AT STEP TWO IN FAILING TO FIND THAT PLAINTIFF'S HEADACHES CONSTITUTE A SEVERE IMPAIRMENT
Plaintiff's case has been working its way through the Social Security Administration ("SSA") for over six years. Plaintiff's initial application for disability insurance benefits ("DIB") was filed on April 2, 2003. (AR 188-90.) After being denied at the administrative level, she filed a Request for Hearing, and had a hearing before an ALJ on March 15, 2004. (AR 36-72.) She received an unfavorable decision several months later. (AR 120.) Her Request for Review with the Appeals Council was granted on November 19, 2004. (AR 160.)
It took almost two years for Plaintiff to have a second hearing, which occurred on May 8, 2006 before the same ALJ. Due to the Order of the Appeals Council remanding the matter, which required development of the record concerning her treating physician, Dr. Kurtz, the ALJ diligently continued the hearing several times in order to attempt to obtain records from Dr. Kurtz, which was ultimately unsuccessful. The hearing finally proceeded on June 4, 2007, at which time Plaintiff appeared with counsel, and testimony was taken both from Plaintiff and from a vocational expert ("VE"). (AR 89-115.) Again, an adverse decision resulted, issued by the ALJ on June 21, 2007. (AR 22-29.) This time, Plaintiff's Request for Review by the Appeals Council was denied, resulting in the filing of this case.
Plaintiff's first ground for error is that the ALJ erred in failing to find that her headaches constituted a severe impairment. In evaluating this claim, the Court will not discuss in any detail the five-step sequential evaluation process, which is well known. In brief, however, a claimant is "disabled" for the purpose of receiving benefits under the Social Security Act if he is unable to engage in any substantial gainful activity due to an impairment which has lasted, or is expected to last, for a continuous period of at least twelve months. 42 U.S.C. §§423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§404.1505(a), 416.905(a). "The claimant bears the burden of establishing a prima facie case of disability." Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996).
The Commissioner has established a five-step sequential evaluation process which the ALJ must follow. 20 C.F.R. §§404.1520, 416.920. What is concerned here is the second step in that process, in which the ALJ must determine whether the claimant has a severe impairment or combination of impairments significantly limiting her from performing basic work activities. If not, a finding of non-disability is made and the claim is denied. 20 C.F.R. §§404.1520(c), 416.920(c).
A severe impairment or combination of impairments is one which significantly limits the claimant's physical or mental ability to perform basic work activities. 20 C.F.R. §416.920. Basic work activities relate to the aptitudes necessary to perform most jobs, such as the ability to perform physical functions, the capacity for seeing and hearing, and the ability to use judgment, respond to supervisors, and deal with changes in the work setting. 20 C.F.R. §416.921; Bowen v. Yuckert, 482 U.S. 137, 141-42 (1987).
Plaintiff is not required to establish total disability at this level of the evaluation. Rather, the severe impairment requirement is a threshold element which plaintiff must prove in order to establish disability within the meaning of the Act. Id. at 146. "The severity requirement increases the efficiency and reliability of the evaluation process by identifying at an early stage those claimants whose medical impairments are so slight that it is unlikely ...