The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge
MEMORANDUM OPINION AND ORDER (Social Security Case)
This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified Administrative Record ("AR").
Plaintiff raises the following issues:
1. Whether the Administrative Law Judge ("ALJ") properly determined that Plaintiff has a non-severe physical impairment;
2. Whether the ALJ fully and fairly developed the record; and
3. Whether the ALJ properly considered Plaintiff's testimony and made proper credibility findings.
This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that the decision of the Commissioner must be affirmed.
THE ALJ CORRECTLY DETERMINED THAT PLAINTIFF DOES NOT HAVE A SEVERE PHYSICAL IMPAIRMENT The ALJ determined that Plaintiff does not have a severe impairment or combination of impairments pursuant to 20 C.F.R. § 416.921, et seq. (Decision at 10, ¶ 3.) Plaintiff claims this is error and merits reversal for a new hearing or for an award of benefits.
Before addressing the Step Two analysis, the Court notes that Plaintiff has failed to acknowledge the presumption of continuing non-disability based on a prior unfavorable Decision dated June 25, 2008, which found her to be not disabled. (AR 45-57.) In the current case, the ALJ found that Plaintiff failed to rebut the presumption of continuing non-disability (AR 11-12) under the controlling requirements of Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988). The ALJ specifically found that "there has not been a showing of a changed circumstance material to the determination of disability, and the presumption of continuing non-disability has not been rebutted." (AR 12.)
Plaintiff has failed to address this issue in her portion of the JS. Under Chavez, it is Plaintiff's burden to prove changed circumstances.
While Plaintiff's failure to rebut the presumption of continuing non-disability is a sufficient reason to affirm the Decision, the Court will briefly address the ALJ's Step Two finding that Plaintiff does not have a severe impairment. A severe impairment is one which imposes "more than a minimal restriction on a person's ability to engage in basic work activities." (20 C.F.R. § 416.920(c); Social Security Ruling ["SSR"] 88-3c.)
The existence of a severe impairment is not determined by symptoms, but must be established by objective evidence. (SSR 96-4p.) While the Step Two finding is often referenced as a "de minimis" showing of limitation (see Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 1996)), it is required that the impairment must cause more than minimal limitation in a claimant's ...