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Flores v. Colvin

United States District Court, Ninth Circuit

October 22, 2013

RAMONA FLORES, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, [1] Defendant.

MEMORANDUM OPINION AND ORDER

JAY C. GANDHI, Magistrate Judge.

Ramona Flores ("Plaintiff") challenges the Social Security Commissioner's decision denying her application for disability benefits. Plaintiff contends, among other things, that the Administrative Law Judge ("ALJ") erred at step two by finding no severe mental impairments. (Joint Stip. at 4-11, 14-15.) Specifically, Plaintiff argues that the ALJ misinterpreted the medical evidence by failing to translate language used in Plaintiff's workers' compensation disability reports into comparable Social Security terminology. ( Id. at 8-9.) 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)). 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, 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 85-28, 1985 WL 56856, at *3). With respect to mental limitations in social functioning, concentration, persistence, or pace, a non-severe finding is appropriate only if they are rated as "none" or "mild." See Hoopai v. Astrue, 499 F.3d 1071, 1077-78 (9th Cir. 2007); 20 C.F.R. § 404.1520a(d)(1).

B. The ALJ Erred By Misinterpreting the Medical Evidence Upon Which He Relied

The ALJ misinterpreted the medical evidence in deciding that Plaintiff's mental limitations were "mild" and, ultimately, non-severe. The ALJ relied on a Work Function Impairment Form submitted by Plaintiff's examining physician, Dr. Warren F. Procci. (Administrative Record ("AR") at 25) ("I find this assessment supports the conclusion that the claimant's mental health impairments are non-severe.") However, Dr. Procci filled out the Form, provided by the California Department of Industrial Relations, for Plaintiff's workers' compensation disability report. ( Id. at 231); see Cal. Code Regs., tit. 8, § 43 Ex. A (2008). The ALJ misconstrued Dr. Procci's assessment because he failed to translate the relevant workers' compensation terminology into Social Security disability vernacular.

Dr. Procci used terms that carry distinct meanings in the workers' compensation context when he diagnosed Plaintiff. ( See AR at 247); Cal. Code Regs., tit. 8, § 43 (2008). He found that Plaintiff had a "slight" impairment in the ability to follow instructions; maintain a work pace appropriate to a given work load; make generalizations, evaluations or decisions without immediate supervision; and accept and carry out responsibility for direction, control, and planning. (AR at 247.) Dr. Procci further noted that Plaintiff had a "slight to moderate" impairment in the ability to perform complex or varied tasks; relate to other people beyond giving and receiving; and influence people. ( Id. ) In workers' compensation parlance, a "slight" level of impairment means a "noticeable" impairment, while a "moderate" impairment means a "marked" impairment. ( See Joint Stip. at 9); Piz v. Astrue, 2008 WL 4567126 at *3 n.3 (C.D. Cal. Oct. 20, 2008); Cal. Code Regs., tit. 8, § 43 (2008).

Courts have repeatedly held that an ALJ's opinion is not supported by substantial evidence where he fails to translate the terms "slight" and "moderate" from the workers' compensation setting into the context of Social Security disability determinations. See Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 574, 576 (9th Cir. 1988) (holding that ALJ's decision "was not supported by substantial evidence because the ALJ had not adequately considered definitional differences between the California workers' compensation system and the Social Security Act."); Piz, 2008 WL 4567126, at *3 ("the Court is unable to affirm the ALJ's assessment of the mental limitations caused by plaintiff's mental impairment because... it is evident from the hearing decision that the ALJ failed to consider the [workers' compensation] definitions of the terms "slight, " "moderate, " and "severe."); Payan v. Chater, 959 F.Supp. 1197, 1204 (C.D. Cal. 1996) (ALJ failed to properly consider the doctor's use of workers' compensation terminology "slight to moderate limitations").

Here, the ALJ failed to translate the workers' compensation terms "slight" and "moderate" into Social Security disability terminology. Properly read, Dr, Procci opined that Plaintiff suffers from noticeable impairments in the ability to follow instructions; maintain a work pace appropriate to a given work load; make generalizations, evaluations or decisions without immediate supervision; and accept and carry out responsibility for direction, control, and planning, and noticeable to marked impairments in ability to perform complex or varied tasks; relate to other people beyond giving and receiving; and influence people. ( See AR at 247); Cal. Code Regs., tit. 8, § 43 (2008).

C. The Medical Evidence Does Not Clearly Establish the Non-Severity of Plaintiff's Mental Impairment

Because the ALJ misinterpreted the medical evidence, he does not clearly establish the non-severity of Plaintiff's mental impairment. The ALJ did not explore whether Plaintiff's noticeable and noticeable to marked impairments "ha[ve] no more than a minimal effect on an [Plaintiff's] ability to work." See Smolen, 80 F.3d at 1290. The Court does not find "clear evidence" that Plaintiff's noticeable limitations in pace (to "maintain a work pace appropriate to a given work load"), and noticeable to marked limitations in social functioning (to "relate to other people beyond giving and receiving"), are rated as "none" or "mild." See Webb, 433 F.3d at 687; 20 C.F.R. § 404.1520a(d)(1).

Further, if the ALJ was uncertain about the significance of Dr. Procci's opinion of Plaintiff's mental limitations, then the ALJ failed in his duty to adequately develop the record. See Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) ("This duty exists even when the claimant is represented by counsel."). "In cases of mental impairments, this duty is especially important." DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991). As such, the ALJ does not clearly establish the non-severity of Plaintiff's mental impairments, and the Court is unable to affirm the ALJ's opinion.

D. 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 a 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. Procci's 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.[2]


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