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Joaquin Enriquez Yepiz v. Carolyn W. Colvin*Fn1

March 28, 2013


The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge


Plaintiff filed this action seeking reversal of the decision of the defendant, the Acting Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for disability insurance benefits and supplemental security ("SSI") income benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

The procedural facts are undisputed and are summarized in the joint stipulation. [JS 2-3]. On November 17, 2008, plaintiff, then aged 36, filed his benefits applications. He alleged disability since August 24, 2008 due to injuries to his left upper extremity sustained in a car accident. [JS 2; Administrative Record ("AR") 15-26, 149]. In a written hearing decision that constitutes the final decision of the Commissioner, the ALJ concluded that plaintiff was not disabled because he could perform work available in significant numbers in the national economy. [JS 2; AR 21-30].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)).


Severity determination

Plaintiff contends that the ALJ improperly found that the plaintiff did not suffer from a severe mental impairment. [JS 8].

The ALJ found that plaintiff had a severe physical impairment consisting of "a non-functional non-dominant left upper extremity." [AR 23]. The ALJ noted that plaintiff sustained a left arm injury in a motor vehicle accident while on vacation in Mexico in August 2008. Plaintiff's left (non-dominant) hand remained attached by a thin bridge of skin. [AR 25-26]. Plaintiff underwent surgery to reattach his left hand, but the ALJ determined that "the overall record clearly establishes non-functionality of the left upper extremity." [AR 26].

The ALJ found that plaintiff did not have a severe mental impairment. He noted that the record "contains scattered references to [plaintiff's] complaints of depression due to his physical condition," but that "the record did not indicate ongoing psychiatric therapy or hospitalization. Further, the record demonstrates that [plaintiff] is taking Wellbutrin*fn2 for his depression without any noted complaints of ineffectiveness or side effects." [AR 24]. The ALJ acknowledged that plaintiff "expressed frustration and sadness regarding his inability to provide for his six children and cries sometimes as a result." [AR 27]. However, he concluded that plaintiff's alleged mental impairment was primarily due to situational factors, namely his "discomfort and decreased physical ability," rather than to a "mental disease process." [AR 27-28]. Notwithstanding the absence of a severe mental impairment, the ALJ found that plaintiff had the residual functional capacity for no more than "simple, routine, and repetitive tasks to accommodate concentration problems that may be related to pain and/or preoccupation with mental issues." [AR 28].

At step two of the sequential evaluation procedure, a claimant has the burden to present evidence of medical signs, symptoms and laboratory findings that establish a medically determinable physical or mental impairment that is severe, and that can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least twelve months. Ukolov v. Barnhart, 420 F.3d 1002, 1004--1005 (9th Cir. 2005); Smolen v. Chater, 80 F.3d 1273, 1289-1290 (9th Cir. 1996). A medically determinable mental impairment is one that results "from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques," and it "must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by [the claimant's] statement of symptoms." 20 C.F.R. §§ 404.1508, 416.908; see 20 C.F.R. §§ 404.1520a(b)(1), 416.920a(b)(1). Symptoms are the claimant's description of his or her impairment, while psychiatric signs are medically demonstrable and observable phenomena which indicate specific abnormalities of behavior, affect, thought, memory, orientation, and contact with reality. See 20 C.F.R. §§ 404.1520a(b), 404.1528(b), 416.920a(b), 416.928(b); see also Social Security Ruling ("SSR") 96-4p, 1996 WL 374187, at *1-*2.

If a claimant demonstrates the existence of a medically-determinable impairment, the ALJ must determine whether the impairment is severe, that is, whether it significantly limits the claimant's ability to perform "basic work activities." 20 C.F.R. §§ 404.1521 (a), 416.921(a); see Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). Basic work activities are the "abilities and aptitudes necessary to do most jobs," such as (1) physical functions like walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, and handling; (2) the capacity for seeing, hearing, speaking, understanding, carrying out, and remembering simple instructions; (3) the use of judgment; and (4) the ability to respond appropriately to supervision, co-workers, and usual work situations. 20 C.F.R. §§ 404.1521(b), 416.921(b).

The ALJ must consider the claimant's subjective symptoms in making a severity determination if the claimant "first establishes by objective medical evidence (i.e., signs and laboratory findings) that he or she has a medically determinable physical or mental impairment(s) and that the impairment(s) could reasonably be expected to produce the alleged symptom(s)." SSR 96-3p, 1996 WL 374181, at *2. If the claimant produces such evidence, "and there is no evidence of malingering, the ALJ can reject the claimant's ...

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