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Heladio Diaz v. Michael J. Astrue

October 3, 2012

HELADIO DIAZ,
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 Heladio Diaz seeks judicial review of the Commissioner's final decision denying his application for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act. For the reasons discussed below, the Commissioner's decision is reversed, and this action is remanded for further proceedings.

I. Background

Plaintiff was born on February 18, 1959. (Administrative Record ("AR") at 52.) He speaks limited English and has relevant work experience as a small engine mechanic and as a truck driver. (AR at 47.) Plaintiff filed his applications for DIB and SSI on September 4, 2008, alleging disability beginning July 5, 2008, due to pulmonary tuberculosis, diabetes, and seizures. (AR at 16, 198.)

Plaintiff's applications were denied initially on September 26, 2008, and upon reconsideration on December 18, 2008. (AR at 16.) An administrative hearing was held on November 19, 2010, before Administrative Law Judge ("ALJ") Maxine R. Benmour. Plaintiff, represented by counsel, testified with the assistance of a Spanish interpreter. A Vocational Expert ("VE") also testified. (AR at 16.)

On January 10, 2011, the ALJ issued an unfavorable decision. (AR at 22-28.) At the first step of the five-step sequential evaluation process for determining whether an individual is disabled, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the disability onset date. (AR at 18.) At step two, the ALJ found that though the Plaintiff suffers from a seizure disorder, diabetes, diabetic neuropathy, pulmonary tuberculosis, and neck pain, these impairments are not severe, either individually or in combination. (AR at 18-19.) Accordingly, the ALJ concluded that Plaintiff was not disabled within the meaning of the Social Security Act. On January 23, 2012, the Appeals Council denied review. (AR at 1-3.)

Plaintiff commenced this action for judicial review, and on September 18, 2012, the parties filed a Joint Stipulation ("Joint Stip.") of disputed facts and issues. Plaintiff contends that the ALJ erred in finding that his medical impairments were not severe by failing to properly consider both the relevant medical evidence and plaintiff's subjective complaints. (Joint Stip. at 3.) Plaintiff seeks remand for a new administrative hearing. (Joint Stip. at 23-24.) The Commissioner requests that the ALJ's decision be affirmed. (Joint Stip. at 24.)

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); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); 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

A. The ALJ's Finding that Plaintiff Suffers from No Severe Impairment is not Supported by Substantial Evidence Plaintiff contends that the ALJ's conclusion that his impairments

are non-severe is not supported by substantial evidence. (AR at 4.) In particular, Plaintiff maintains that his diabetes is a severe impairment in and of itself. (AR at 6.) The Court agrees that the ALJ erred in finding that Plaintiff's diabetes and diabetic ...


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