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James Duke Blevins, Iii v. Michael J. Astrue

March 11, 2011

JAMES DUKE BLEVINS, III, PLAINTIFF,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



ORDER

Plaintiff, proceeding pro se, 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. For the reasons discussed below, the court grants plaintiff's motion for summary judgment and denies defendant's motion for summary judgment, and remands the case for further proceedings.

I. BACKGROUND

Plaintiff formally applied for SSI on April 15, 2007. Administrative Record ("AR") 9.

Plaintiff alleged that he had been disabled since January 1, 1977. Id. Plaintiff's application was denied initially and upon reconsideration, and plaintiff requested an administrative hearing. Id. at 44-45, 48-5260. On May 29, 2009, a hearing was held before administrative law judge ("ALJ") Alexander Weir III. Id. at 9. Plaintiff was not represented by counsel at the hearing.

He testified, as well as Sandra Scheider, a vocational expert, and David Peterson, a medical expert. Id.

The ALJ issued a decision on September 3, 2009, finding that plaintiff was not disabled.*fn1

Id. at 9-14. The ALJ made the following specific findings:

1. The claimant has not engaged in substantial gainful activity since August 15, 2007, the application date (20 CFR 416.971 et seq.).

2. The claimant has the following medically determinable impairments: depressive disorder, schizoaffective disorder and polysubstance abuse. These impairments are not a severe impairment (20 CFR 416.920a(d)(1)).

The evidence thus shows that the claimant has mental impairments of depressive disorder and schizoaffective disorder and polysubstance abuse. However the claimant has not received mental health treatment in over two years. He has not been psychiatrically hospitalized. There is no evidence of any episodes of psychotic or extremely disorganized behavior. He has not been held for psychiatric observation in any facility under California Health Code Section 5150. He claims have his drug abuse and alcoholism in remission (sic). The consultative psychologist, Ahmad Riahinejad, diagnosed the claimant with polysubstance dependence in remission (Exhibit 4F), as the claimant had recently completed a 90 day drug and alcohol recovery program. The State Agency psychiatric consultants opined that the claimant's mental impairments are not severe. I concur.

I find that the claimant's mental impairments provide only mild limitations in his daily living activities and social functioning. They provide only mild limitations in his ability to maintain concentration, persistence and pace. They have not caused any episodes of decompensation of extended duration. Based on this assessment the claimant's mental impairments are not severe impairments (20 CFR 416.920a(d)(1)). The claimant has not been I conclude that , which are mental impairments (sic).

3. The claimant does not have an impairment or combination of impairments 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 et seq.).

4. The claimant is not disabled and has not been under a disability, as defined in the Social Security Act, since August 15, 2007, the date the application was filed (20 CFR 416.920(c)).

Id. at 19-25.

Plaintiff requested that the Appeals Council review the ALJ's decision. Id. at 5. However, on October 27, 2009, the Appeals Council denied review, leaving the ALJ's decision as the "final decision of the Commissioner of Social Security." Id. at 1-3.

II. STANDARD OF REVIEW

The ALJ's decision denying benefits "will be disturbed only if that decision is not supported by substantial evidence or it is based upon legal error." Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).

The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). The Court may not substitute its judgment for that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Substantial evidence is more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). "'It means such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).

"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). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

III. ANALYSIS

The ALJ found that plaintiff's depressive disorder, schizoaffective disorder and polysubstance abuse were not severe impairments, and determined that plaintiff was not disabled at step two of the sequential evaluation process. The evaluation at step two is a de minimis test intended to weed out the most minor impairments. See Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987); Edlund, 253 F.3d at 1158 (stating step two inquiry is de minimis screening device to dispose of groundless claims). An impairment is not severe if the evidence establishes a slight abnormality that has only a minimal effect on an individual's ability to work. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). As explained below, the ALJ's decision was not supported by substantial evidence.

The ALJ gave several reasons for finding plaintiff's mental impairments non-severe. First, he wrote that plaintiff had not received mental health treatment in over two years. This is incorrect. In fact, plaintiff testified at the hearing that he was currently seeing a psychiatrist and was currently on medication, and produced medication ...


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