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Abney v. Astrue

October 21, 2010

FRANK ABNEY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Honorable Jacqueline Chooljian United States Magistrate Judge

MEMORANDUM OPINION AND ORDER OF REMAND

I. SUMMARY

On February 4, 2010, plaintiff Frank Abney ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's application for benefits. The parties have consented to proceed before a United States Magistrate Judge.

This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; February 9, 2010 Case Management Order ¶ 5.

Based on the record as a whole and the applicable law, the decision of the Commissioner is REVERSED AND REMANDED for further proceedings consistent with this Memorandum and Opinion and Order of Remand because the Administrative Law Judge ("ALJ") erred in finding that plaintiff does not have any severe impairment at step two.

II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

On July 25, 2008, plaintiff filed applications for Disability Insurance Benefits and Supplemental Security Income benefits. (Administrative Record ("AR") 95-98, 102-04). Plaintiff asserted that he became disabled on June 1, 2001, due to heart and back problems. (AR 135). The ALJ examined the medical record and heard testimony from plaintiff, who was represented by counsel, on July 13, 2009. (AR 36-54).

On September 23, 2009, the ALJ determined that plaintiff was not disabled from his alleged onset date of June 1, 2001, through September 30, 2006, plaintiff's last date insured. (AR 21-35). Specifically, the ALJ found that*fn1 plaintiff does not have a severe impairment or a severe combination of impairments. (AR 32-34).

The Appeals Council denied plaintiff's application for review. (AR 1-3).

III. APPLICABLE LEGAL STANDARDS

A. Sequential Evaluation Process

To qualify for disability benefits, a claimant must show that he is unable to engage in any substantial gainful activity by reason of a medically determinable 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 at least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work he previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).

In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:

(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. ...


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