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Diane Garcia Melendez v. Michael J. Astrue

March 25, 2013

DIANE GARCIA MELENDEZ, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Alicia G. Rosenberg United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Diane Garcia Melendez filed this action on April 11, 2012. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on May 14 and November 3, 2012. (Dkt. Nos. 7, 13.) On November 1, 2012, the parties filed a Joint Stipulation ("JS") that addressed the disputed issues. The court has taken the matter under submission without oral argument.

Having reviewed the entire file, the decision of the Commissioner is reversed and remanded for further proceedings consistent with this opinion.

I.

PROCEDURAL BACKGROUND

On March 17, 2008, Melendez filed an application for supplemental security income, which alleged a disability onset date of March 13, 2007. Administrative Record ("AR") 12, 223-29. The application was denied initially and on reconsideration. AR 12, 98-99. Melendez requested a hearing before an Administrative Law Judge ("ALJ"). On February 17, 2010, the ALJ conducted a hearing at which Melendez and a medical expert ("ME") testified. AR 53-88. The hearing was continued to allow Melendez to submit additional medical records. AR 73-74, 88. On June 4, 2010, the ALJ conducted a supplemental hearing at which Melendez and a vocational expert ("VE") testified. AR 29-52. On July 21, 2010, the ALJ issued a decision denying benefits. AR 9-22. On January 30, 2012, the Appeals Council denied the request for review. AR 1-5. This action followed.

II.

STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this court reviews the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence, or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

"Substantial evidence" means "more than a mere scintilla but less than a preponderance -- it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523. In determining whether substantial evidence exists to support the Commissioner's decision, the court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than one rational interpretation, the court must defer to the Commissioner's decision. Moncada, 60 F.3d at 523.

III.

DISCUSSION

A. Disability

A person qualifies as disabled, and thereby eligible for such benefits, "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003) (citation and quotation marks omitted).

B. The ALJ's Findings

The ALJ found Melendez has the following severe impairments: degenerative disc disease of the lumbar spine, sleep apnea, and depressive disorder. AR 14. She does not have an impairment or combination of impairments that meets or equals one of the listed impairments. AR 15. She has the residual functional capacity ("RFC") to lift and/or carry twenty pounds occasionally and ten pounds frequently, and stand/walk or sit for six hours. AR 16. She can occasionally climb ramps and stairs, balance, bend, stoop, crouch, and kneel, but never climb scaffolds or ropes. Id. She should avoid working with dangerous machinery or at unprotected heights, or with fumes, odors, gases, dust, and chemicals. Id. She should not perform safety operations or be responsible for the safety of others, or perform work requiring hyper-vigilance, defined as intense sustained concentration such as air traffic controller. Id. She has no past relevant work, but there are jobs that exist in significant numbers in the national economy that she can perform such as cashier II and small products assembler. AR 21-22.

C. Severe Impairments

Melendez contends the ALJ erred by not considering all of her impairments and failing to determine whether those impairments were severe.

At step two of the sequential analysis, the claimant bears the burden of demonstrating a severe, medically determinable impairment that meets the duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii); Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987). To satisfy the duration requirement, the severe impairment must have lasted or be expected to last for a continuous period of not less than twelve months. Id. at 140.

Your impairment must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques. A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by your statement of symptoms.

20 C.F.R. § 404.1508; 20 C.F.R. § 416.908. "[T]he impairment must be one that 'significantly limits your physical or mental ability to do basic work activities.'"*fn1 Yuckert, 482 U.S. at 154 n.11 (quoting 20 C.F.R. § 404.1520(c)); Smolen, 80 F.3d at 1290 ("[A]n impairment is not severe if it does not significantly limit [the claimant's] physical ability to do basic work activities.") (citation and quotation marks omitted).

"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.'" Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005) (emphasis in original, citation omitted). Step two is "a de minimis screening device [used] to dispose of groundless claims" and the ALJ's finding ...


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