UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
October 21, 2010
FRANK ABNEY, PLAINTIFF,
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
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. If not, proceed to step two.
(2) Is the claimant's alleged impairment sufficiently severe to limit his ability to work? If not, the claimant is not disabled. If so, proceed to step three.
(3) Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If not, proceed to step four.
(4) Does the claimant possess the residual functional capacity to perform his past relevant work? If so, the claimant is not disabled. If not, proceed to step five.
(5) Does the claimant's residual functional capacity, when considered with the claimant's age, education, and work experience, allow him to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled.
Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001)
(citing Tackett); see also Burch, 400 F.3d at 679 (claimant carries initial burden of proving disability).
B. Standard of Review
Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006) (citing Flatten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 (9th Cir. 1995)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)).
To determine whether substantial evidence supports a finding, a court must "'consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing the ALJ's conclusion, a court may not substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 882 (citing Flatten, 44 F.3d at 1457).
A. Step Two Determination
Plaintiff argues that the ALJ committed reversible error at step two by determining that plaintiff does not suffer from a severe impairment. (Plaintiff's Motion at 4-6). The Court agrees.
1. Pertinent Law
At step two of the sequential evaluation process, plaintiff has the burden to present evidence of medical signs, symptoms and laboratory findings that establish a medically determinable physical or mental impairment that is severe, and that 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. Ukolov v. Barnhart, 420 F.3d 1002, 1004-1005 (9th Cir. 2005) (citing 42 U .S.C. §§ 423(d)(3), 1382c(a)(3)(D)); see 20 C.F.R. § 404.1520. Substantial evidence supports an ALJ's determination that a claimant is not disabled at step two where "there are no medical signs or laboratory findings to substantiate the existence of a medically determinable physical or mental impairment." Id. (quoting Social Security Ruling ("SSR") 96-4p ). "If an adjudicator is unable to determine clearly the effect of an*fn2 impairment or combination of impairments on [an] individual's ability to do basic work activities, the sequential evaluation should not end" at step two. SSR 85-28.
"Step two, then, is 'a de minimis screening device [used] to dispose of groundless claims.'" Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)). Applying the normal standard of review to the requirements of step two, a court must determine whether an ALJ had substantial evidence to find that the medical evidence clearly established that the claimant did not have a medically severe impairment or combination of impairments. Id.; see also Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) ("Despite the deference usually accorded to the Secretary's application of regulations, numerous appellate courts have imposed a narrow construction upon the severity regulation applied here."). An impairment or combination of impairments can be found "not severe" only if the evidence establishes a slight abnormality that has "no more than a minimal effect on an individual's ability to work." Webb, 433 F.3d at 686 (citation omitted).
Under this narrow standard for step two evaluations, the finding that plaintiff does not have a severe impairment is not clearly established by the medical evidence. Plaintiff alleges that he has experienced back pain since he was injured in a 1970 military incident involving two forklifts. (AR 40, 135). During the period for which he was eligible for Disability Insurance Benefits, plaintiff was diagnosed with intervertebral disk disease, cervical and lumbar radiculopathy, lumbago, degenerative joint disease, chronic back pain, osteoarthritis, and chronic rhabdomyolysis. (AR 170, 184, 186, 189-90). These diagnoses were based on*fn3 objective medical evidence such as physical examinations and radiological studies. (E.g., AR 170, 189-90). In March 2006 plaintiff underwent surgery to treat "chronic neck pain with mainly [right upper extremity] radiculopathy secondary to C3456 degenerative cervical spine canal stenosis with neuroforaminal stenosis." (AR 185). Moreover, plaintiff continued to receive treatment for his back pain after his period of eligibility (e.g., AR 173-74, 349, 377-78, 491-95), further suggesting that his impairments meet the durational requirement of step two. The Court appreciates that the medical record may not paint a complete picture of plaintiff's overall health during the relevant period, but "it includes evidence of problems sufficient to pass the de minimis threshold of step two." Webb, 433 F.3d at 687. Although the Court "do[es] not intimate that [plaintiff] will succeed in proving that he is disabled," the ALJ must continue the sequential evaluation beyond step two "because there was not substantial evidence to show that [plaintiff's] claim was groundless." Id. at 688.*fn4
For the foregoing reasons, the decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion.*fn5
LET JUDGMENT BE ENTERED ACCORDINGLY.