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Shirley A. Cowains v. Michael J. Astrue

August 30, 2012

SHIRLEY A. COWAINS,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
DEFENDANT.



The opinion of the court was delivered by: Marc L. Goldman United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Shirley Cowains seeks judicial review of the Commissioner's final decision denying her applications for Social Security Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") benefits. For the reasons set forth below, the decision of the Commissioner is reversed, and the matter is remanded for further proceedings consistent with this opinion.

I. Background

Plaintiff was born on September 7, 1960. (Administrative Record ("AR") at 71, 128.) She has a high school education and has work experience as a home attendant, stocker, mail sorter, and telemarketer. (AR at 139, 141.) Plaintiff filed her SSI and DIB applications on October 8, 2008, alleging disability beginning January 8, 2007, due to affective mood disorder, fracture of the right ankle and cervical pain. (AR at 110-113, 114-116.)

Plaintiff's applications were denied initially on February 3, 2009. (AR at 76-80, 76-81.) An administrative hearing was held on April 15, 2010, before Administrative Law Judge ("ALJ") David Marcus. Plaintiff, represented by counsel, testified, as did a Vocational Expert ("VE"). (AR at 48-67.)

On July 7, 2010, ALJ Marcus issued an unfavorable decision. (AR at 23-34.) The ALJ found that the Plaintiff had not engaged in substantial gainful activity since the alleged onset date. (AR at 25.) The ALJ further found that, pursuant to 20 C.F.R. 416.920(c), the medical evidence established that Plaintiff suffered from the following severe impairments: status post right ankle surgery, cervical osteoarthritis, and lumbar discogenic disease. (Id.) However, the ALJ determined that Plaintiff's impairments did not meet, or were not medically equal to, one of the listed impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1. (AR at 27.)

The ALJ next found that Plaintiff retained the residual functional capacity ("RFC") to perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b) "in that she can lift and carry 20 pounds occasionally, 10 pounds frequently, can stand and walk 6 hours out of an 8 hour day, can sit 6 hours out of an 8 hour day, and can frequently bend, stoop, crouch and kneel." (Id.) Plaintiff was deemed capable of performing her past relevant work as a home companion, cafeteria attendant, mail clerk and telemarketer. (AR at 29-30.) The ALJ concluded that Plaintiff was not disabled within the meaning of the Social Security Act. See 20 C.F.R. § 416.920(f). (AR at 30.)

On December 21, 2011, the Appeals Council denied review (AR at 3-8). Plaintiff then timely commenced this action for judicial review. On August 23, 2012, the parties filed a Joint Stipulation ("Joint Stip.") of disputed facts and issues. Plaintiff contends that the ALJ erred by:

(1) improperly concluding that Plaintiff's mental impairment was not severe, and (2) failing to perform a proper credibility analysis. (Joint Stip. at 4.) Plaintiff seeks reversal of the Commissioner's denial of her applications and payment of benefits or, in the alternative, remand for a new administrative hearing. (Joint Stip. at 18-19.) The Commissioner requests that the ALJ's decision be affirmed. (Joint Stip. at 19.)

After reviewing the parties' respective contentions and the record as a whole, the Court finds Plaintiff's contention regarding the ALJ's non-severity finding to be meritorious and remands this matter for further proceedings consistent with this opinion.*fn1

II. Standard of Review

Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The Commissioner's or ALJ's decision must be upheld unless "the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can support either affirming or reversing the ALJ's conclusion," the reviewing court "may not substitute its judgment for that of the ALJ." Robbins, 466 F.3d at 882.

III. Discussion

The Court agrees with Plaintiff that remand is warranted based upon the ALJ's erroneous finding that her mental impairment was non-severe, because that decision is not supported by substantial evidence. The existence of a severe impairment is demonstrated when the evidence establishes that an impairment has more than a minimal effect on an individual's ability to perform basic work activities. Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005); Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); 20 C.F.R. §§ 404.1521(a), 416.921(a). The regulations define "basic work activities" as "the abilities and aptitudes necessary to do most jobs," which include physical functions such as walking, standing, sitting, pushing, carrying; capacities for seeing, hearing and speaking; understanding and remembering simple instructions; responding appropriately in a work setting; and dealing with changes in a work setting. 20 C.F.R. § 404.1521(b). The inquiry at this stage is "a de minimis screening device to dispose of groundless claims." Smolen, 80 F.3d at 1290 (citing Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987)). An impairment is not severe only if it is a slight abnormality with "no more than a minimal effect on an individual's ability to work." See SSR 85-28; Yuckert v. Bowen, ...


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