United States District Court, C.D. California
MEMORANDUM OPINION AND ORDER REVERSING DECISION OF
COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE
ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE
Marcus Dupree Harris protectively filed his application for
disability benefits under Title II of the Social Security Act
on July 24, 2012. After denial on initial review and on
reconsideration, a hearing took place before an
Administrative Law Judge (ALJ) on July 14, 2014, at which
Plaintiff testified on his own behalf without the assistance
of an attorney. In a decision dated August 6, 2014, the ALJ
found that Plaintiff was not disabled within the meaning of
the Social Security Act since July 24, 2012, the date the
application was filed. The Appeals Council declined to set
aside the ALJ's unfavorable decision in a notice dated
January 27, 2016. Plaintiff filed a Complaint herein on March
24, 2016, seeking review of the Commissioner's denial of
his application for benefits.
accordance with the Court's Order Re: Procedures in
Social Security Appeal, Plaintiff filed a memorandum in
support of the complaint on November 8, 2016 (“Pl.
Mem.”) and the Commissioner filed a memorandum in
support of her answer on December 8, 2016 (“Def.
Mem.”). Plaintiff did not file a reply. This matter now
is ready for decision.
reflected in the parties' memoranda, the disputed issues
(1) Whether the ALJ improperly determined Plaintiff did not
suffer from a severe mental impairment at step two of the
(2) Whether the ALJ failed in his duty to an unrepresented
STANDARD OF REVIEW
42 U.S.C. § 405(g), this Court reviews the
Commissioner's decision to determine whether the
Commissioner's findings are supported by substantial
evidence and whether the proper legal standards were applied.
See Treichler v. Comm'r of Social. Sec. Admin.,
775 F.3d 1090, 1098 (9th Cir. 2014). Substantial evidence
means “more than a mere scintilla” but less than
a preponderance. See Richardson v. Perales, 402 U.S.
389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d
1028, 1035 (9th Cir. 2007). Substantial evidence is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Richardson, 402 U.S. at 401. This Court must review
the record as a whole, weighing both the evidence that
supports and the evidence that detracts from the
Commissioner's conclusion. Lingenfelter, 504
F.3d at 1035.
FIVE-STEP EVALUATION PROCESS
Commissioner (or ALJ) follows a five-step sequential
evaluation process in assessing whether a claimant is
disabled. 20 C.F.R. §§ 404.1520, 416.920;
Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir.
1995), as amended April 9, 1996. In the first step,
the Commissioner must determine whether the claimant is
currently engaged in substantial gainful activity; if so, the
claimant is not disabled and the claim is denied.
Id. If the claimant is not currently engaged in
substantial gainful activity, the second step requires the
Commissioner to determine whether the claimant has a
“severe” impairment or combination of impairments
significantly limiting his ability to do basic work
activities; if not, a finding of nondisability is made and
the claim is denied. Id. If the claimant has a
“severe” impairment or combination of
impairments, the third step requires the Commissioner to
determine whether the impairment or combination of
impairments meets or equals an impairment in the Listing of
Impairments (“Listing”) set forth at 20 C.F.R.
part 404, subpart P, appendix 1; if so, disability is
conclusively presumed and benefits are awarded. Id.
If the claimant's impairment or combination of
impairments does not meet or equal an impairment in the
Listing, the fourth step requires the Commissioner to
determine whether the claimant has sufficient “residual
functional capacity” to perform his past work; if so,
the claimant is not disabled and the claim is denied.
Id. The claimant has the burden of proving that he
is unable to perform past relevant work. Drouin v.
Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the
claimant meets this burden, a prima facie case of
disability is established. Id. The Commissioner then
bears the burden of establishing that the claimant is not
disabled, because he can perform other substantial gainful
work available in the national economy. Id. The
determination of this issue comprises the fifth and final
step in the sequential analysis. 20 C.F.R. §§
404.1520, 416.920; Lester, 81 F.3d at 828 n.5;
Drouin, 966 F.2d at 1257.
THE ALJ'S APPLICATION OF THE FIVE-STEP PROCESS
one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since July 24, 2012, the
application date. (AR 10.) At step two, the ALJ found that
Plaintiff had the following medically determinable
impairments: back strain; psychotic disorder; and history of
polysubstance abuse. (Id.) At step three, the ALJ
found that Plaintiff does not have an impairment or
combination of impairments that has significantly limited (or
is expected to significantly limit) the ability to perform