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Alfonso M. Mejia v. Carolyn W. Colvin

March 19, 2013

ALFONSO M. MEJIA,
PLAINTIFF,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.*FN1



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

MEMORANDUM OPINION AND ORDER

Plaintiff Alfonso M. Mejia ("Plaintiff") seeks judicial review of the Commissioner's final decision denying his applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") pursuant to Titles II and XVI of the Social Security Act. For the reasons stated below, the Commissioner's decision is remanded for further proceedings.

I. Factual and Procedural Background

Plaintiff was born on August 15, 1968. (Administrative Record ("AR") at 34, 145). He has a limited education and past work experience as a dishwasher. (AR at 34).

On May 22, 2007, Plaintiff filed an application for DIB, alleging that he has been disabled since May 11, 2007. (AR at 145-52). On January 29, 2008, Plaintiff filed an application for SSI, alleging an onset of disability date of August 19, 2007.*fn2 (AR at 153-59). Plaintiff claimed that the following conditions limited his ability to work: back problems, diabetes, depression, arthritis, bipolar disorder, severe mood swings, panic attacks, and anxiety attacks. (AR at 202, 217, 243). The Social Security Administration denied Plaintiff's applications. (AR at 121-24, 126-35).

An administrative hearing was held before Administrative Law Judge Milan M. Dostal ("the ALJ") on February 17, 2011. (AR at 79-107). Plaintiff was represented by counsel at the hearing, and testified in his own behalf. (AR at 79-107). In a written decision dated March 11, 2011, the ALJ found that Plaintiff: had not engaged in substantial gainful activity since his alleged onset date of disability (step one); suffered from the severe impairments of disorder of the lumbar spine and asthma (step two); (3) did not have any impairments that met or equaled the criteria of a listed impairment (step 3); (4) had a residual functional capacity ("RFC") to perform the full range of work at all exertional levels, except work involving exposure to dust, fumes, and smoke, and was able to perform his past relevant work as a dishwasher (step 4); and (5) was able to perform other work that exists in significant numbers in the economy, including work as a hand packager and small products assembler. (AR at 22-35). Therefore, the ALJ concluded that Plaintiff was not under a disability from August 19, 2007, through the date of the decision. (AR at 35).

On August 31, 2012, the Appeals Council denied review, and the ALJ's decision became the final decision of the Commissioner. (AR at 1-4).

Plaintiff commenced this action for judicial review on October 5, 2012. The parties filed a Joint Stipulation outlining the issues in dispute on March 1, 2013. Plaintiff contends that the ALJ erred in finding that Plaintiff's mental impairments are not severe, and by failing to properly consider Plaintiff's limitations in lifting, bending and stooping, as determined by an examining physician. (Joint Stipulation at 4-12, 15-20). Plaintiff seeks remand for payment of benefits or, in the alternative, remand for further proceedings. (Joint Stipulation at 20). The Commissioner requests that the ALJ's decision be affirmed. (Joint Stipulation at 21). The Joint Stipulation has been taken under submission without oral argument.

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 findings and decision should be upheld if they are free from legal error and are supported by substantial evidence based on the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); 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, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less than a preponderance. Lingenfelter, 504 F.3d at 1035 (citing 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 reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for that of the Commissioner. Id. at 720-721.

III. Discussion

A. Severe Mental Impairment

Plaintiff contends that the ALJ erred in failing to find his mental impairment severe at step two of the sequential evaluation process.

"An impairment or combination of impairments may be found 'not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work.'" See Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)). If a finding of non-severity is not "clearly established by medical evidence," adjudication must continue through ...


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