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De Chacon v. Colvin

United States District Court, Ninth Circuit

May 23, 2013



JAY C. GANDHI, Magistrate Judge.

Maria A. Rivera De Chacon ("Plaintiff") challenges the Social Security Commissioner's decision denying her application for disability benefits. Specifically, Plaintiff contends that the ALJ erred at step two by finding no severe mental impairments. (Joint Stip. at 4-10, 21-22.) The Court agrees with Plaintiff for the reasons discussed below.

A. Step Two Requires Only a De Minimis Showing of Limitation

Step two serves as a " de minimis screening device to dispose of groundless claims.'" Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001) (quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)). To that end, it directs an immediate non-disability finding only if a claimant is not suffering from a severe impairment. 20 C.F.R. § 404.1520(a)(4)(ii).

An impairment is 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." Smolen, 80 F.3d at 1290 (emphasis added, and internal quotation marks and citation omitted). Such a finding must be "clearly established by medical evidence.'" Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (quoting Social Security Ruling ("SSR") 85-28, 1985 WL 56856, at *3).

B. The ALJ Erred by Finding Plaintiff's Mental Impairments Non-Severe

Here, the evidence does not clearly establish the non-severity of Plaintiff's mental impairments. To the contrary, Dr. Simonian specifically found that Plaintiff's "ability to adapt to the stresses common to a normal work environment is moderately limited." (AR at 299.)

Presumably, moderate stress limitations will have more than a minimal effect on a claimant's ability to work.[2] Indeed, with respect to such concentration-, persistence-, or pace-based limitations, a non-severe finding is appropriate only if they are rated as "none" or "mild." 20 C.F.R. § 404.1520a(d)(1). By inference, then, Plaintiff's "moderate" mental impairments should have been deemed severe at step two. See Hacker v. Astrue, 2011 WL 2496580, at *4 (C.D. Cal. June 22, 2011) (reasoning similarly).

Accordingly, for the reasons stated above, the Court finds that the ALJ erred at step two.[3] The Court thus determines that the ALJ's decision is not supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001).

C. Remand is Warranted

With error established, this Court has discretion to remand or reverse and award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose would be served by further proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). But where there are outstanding issues that must be resolved before a determination can be made, or it is not clear from the record that the ALJ would be required to find plaintiff disabled if all the evidence were properly evaluated, remand is appropriate. See id. at 594.

On remand, the ALJ shall obtain, if necessary, additional information and clarification regarding Plaintiff's impairments. On the basis of this information, the ALJ shall then reassess the severity of Plaintiff's impairments at step two with attention to Dr. Simonian's consultative opinion.

Based on the foregoing, IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision.[4]

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