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Mireya Cuevas v. Carolyn W. Colvin

March 18, 2013

MIREYA CUEVAS,
PLAINTIFF,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY,*FN1
DEFENDANT.



The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

MEMORANDUM OPINION AND ORDER OF REMAND

Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.

PROCEEDINGS

Plaintiff filed a complaint on June 19, 2012, seeking review of the Commissioner's denial of disability benefits. The parties filed a consent to proceed before a United States Magistrate Judge on July 13, 2012. Plaintiff filed a motion for summary judgment on November 26, 2012. Defendant filed a cross-motion for summary judgment on February 11, 2013. The Court has taken the motions under submission without oral argument. See L.R. 7-15; "Order," filed June 21, 2012.

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

In 2007 and 2008, Plaintiff, a former physical therapy aid, applied for disability insurance benefits asserting disability since July 3, 2003, based on an alleged herniated disc, impaired vision, and torn left rotator cuff (Administrative Record ("A.R.") 59-60, 159-65 (applications), 180-81). Plaintiff reported that she had undergone four eye surgeries and suffered from severe headaches due to her neck problems, had numbness to both hands, and was limited in her ability to lift, walk and sit (A.R. 180). Plaintiff's last insured date was December 31, 2007 (A.R. 19, 174).*fn2

In a September 10, 2010 decision, an Administrative Law Judge ("ALJ") found Plaintiff not disabled (A.R. 17-29). The ALJ found that Plaintiff has the following severe impairments: "retrolisthesis of C4 over C5 and status post cervical fusion and laminectomy; status post removal of cervical plate and screws; status post cervical foraminotomy due to cervical foraminal stenosis; legally blind right eye; facet disease of lumbosacral spine L5-S1; left shoulder tendonitis; headaches; and depression" (A.R. 19 (adopting medical expert testimony at A.R. 41)). The ALJ stated that Plaintiff's impairments do not meet or equal a listed impairment (A.R. 19-20 (adopting medical expert testimony at A.R. 41)).

The ALJ found that Plaintiff could perform a range of sedentary work limited to simple repetitive tasks in a non-public environment (A.R. 20, 26 (adopting medical expert testimony at A.R. 41-42 concerning Plaintiff's physical capacity, and non-examining state agency physician's opinion at A.R. 1198-1200 concerning Plaintiff's mental capacity)). The ALJ believed that, although Plaintiff no longer could perform her past relevant work, there exist other jobs Plaintiff can perform, specifically the jobs of assembler and office helper (A.R. 28 (adopting vocational expert testimony at A.R. 79-80)). The Appeals Council denied review (A.R. 8-10).

STANDARD OF REVIEW

Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used proper legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). 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) (citation and quotations omitted); Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006).

DISCUSSION

Plaintiff contends, inter alia, that the ALJ failed to evaluate adequately whether Plaintiff met or equaled Listing 1.04(A). As discussed below, the Court agrees with this contention and also discerns an error regarding the vocational evidence. Remand is appropriate.

I. The ALJ Failed to Evaluate Adequately Whether Plaintiff Meets or Equals Listing 1.04(A).

At step three of the sequential evaluation process, the ALJ must determine whether a claimant has an impairment or combination of impairments that meets or equals a listed impairment. See 20 C.F.R. §§ 404.1520(d), 416.920(d). If a claimant meets or equals a listed impairment, he or she is "conclusively presumed to be disabled and entitled to benefits." Bowen v. City of New York, 476 U.S. 467, 471 (1986); accord Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993); see also 20 C.F.R. §§ 404.1525(a); 416.925(a) (discussing the Listings). An impairment meets a listing if the impairment matches all of the specified medical criteria. Sullivan v. Zebley, 493 U.S. 521, 530 (1990); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). An ...


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