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Gallemore v. Colvin

United States District Court, Central District of California

November 7, 2014

JOSEPH M. GALLEMORE II, Plaintiff,
v.
CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS

ROBERT N. BLOCK, UNITED STATES MAGISTRATE JUDGE.

Plaintiff filed a Complaint herein on February 26, 2014, seeking review of the Commissioner’s denial of his applications for Disability Insurance Benefits and Supplemental Security Income benefits. In accordance with the Court’s Case Management Order, the parties filed a Joint Stipulation on October 23, 2014. Thus, this matter now is ready for decision.[1]

DISPUTED ISSUES

As reflected in the Joint Stipulation, the disputed issues that plaintiff is raising as the grounds for reversal and remand are as follows:

1. Whether the Administrative Law Judge (“ALJ”) made a proper step two determination.
2. Whether the ALJ properly considered the opinion of plaintiff’s treating nurse practitioner.
3. Whether the ALJ made a proper adverse credibility determination.

DISCUSSION

For the reasons discussed hereafter, the Court concurs with the Commissioner that reversal is not warranted based on the ALJ’s failure to make a proper step two determination, or based on the ALJ’s alleged failure to make a proper adverse credibility determination. However, the Court concurs with plaintiff that the ALJ failed to properly consider the opinion of the treating nurse practitioner.

A. Reversal is not warranted based on the ALJ’s failure to make a proper step two determination.

Disputed Issue One is directed to the ALJ’s exclusion of plaintiff’s back condition from his step two determination. (See Jt Stip at 3-7.)

Step two of the Commissioner’s sequential evaluation process requires the ALJ to determine whether an impairment is severe or not severe. See 20 C.F.R. §§ 404.1520(a), 416.920(a). The Social Security Regulations and Rulings, as well as case law applying them, discuss the step two severity determination in terms of what is “not severe.” According to the Commissioner’s regulations, an impairment is not severe if it does not significantly limit the claimant’s physical or mental ability to do basic work activities.” See 20 C.F.R. §§ 404.1520(c), 404.1521(a), 416.920(c), 416.921(a). Basic work activities are “abilities and aptitudes necessary to do most jobs, ” including “[p]hysical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling.” Basic work activities also include mental activities such as understanding, carrying out, and remembering simple instructions; use of judgment; responding appropriately to supervision, co-workers, and usual work situations; and dealing with changes in a routine work setting. See 20 C.F.R. §§ 404.1521(b), 416.921(b); Social Security Ruling (“SSR”) 85-28. The Ninth Circuit has described step two as “a de minimis screening device to dispose of groundless claims.” See Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); see also Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005).

Here, the record reflects that Dr. Nicola reviewed plaintiff’s medical file and examined him for complaints of lower back pain. (See AR 244-49.) During the examination, Dr. Nicola observed, inter alia, that plaintiff had a mildly antalgic gait, mild lumbar guarding, tenderness of the left lumbar parapsinals at L4-5, significant hypertonicity of the lumbar parapsinals bilaterally at T12-L5, positive results on Yoman’s test and Kemp’s test, bilateral lumbar and buttock pain, and mild subjective loss of sensation to pinprick upon neurological examination. (See AR 246.) Dr. Nicola also noted that a December 2006 MRI of plaintiff’s lumbar spine revealed straightening of lumbar lordosis, asymmetric annular bulging with annular tear on the left L5-S1 level, and narrowing of the lateral recess and inferior recess of the left neural foramen. (See AR 244.) Dr. Nicola also noted that Dr. Duke had diagnosed degenerative lumbar spondylosis with lumbar strain. (See id.)

Although the ALJ briefly mentioned plaintiff’s back condition in his decision (see AR 19, 20), he excluded the impairment from his step two determination without explanation (see AR 17). The Court concurs with plaintiff that the ALJ erred by failing to properly consider plaintiff’s back condition as part of the step two determination, particularly in light of Dr. Nicola’s uncontroverted findings. In other words, the medical evidence did not clearly establish that plaintiff’s back condition was a non-severe impairment. See Webb v. Barnhart, 433 F.3d 683, 685, 688 (9th Cir. 2005) (ALJ’s non-severity determination was not clearly established where the ...


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