Ortiz v. Commissioner of Social Security , 425 F. App'x 653 ( 2011 )

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                                                                           FILED
NOT FOR PUBLICATION                             APR 05 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARIANNE ORTIZ,                                  No. 09-17603
Plaintiff - Appellant,             D.C. No. 1:08-cv-01431-DLB
v.
MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Dennis L. Beck, Magistrate Judge, Presiding
Submitted January 27, 2011 **
Before: HUG, SKOPIL, and BEEZER, Circuit Judges.
Marianne Ortiz appeals the denial of her application for supplemental
security income benefits. We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we reverse and remand for further proceedings.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
I.
Ortiz was initially granted supplemental security income benefits in 1989.
At that time, an Administrative Law Judge (ALJ) determined Ortiz had “a
cyclothymic disorder characterized by anhedonia, sleep disturbance, feelings of
worthlessness, difficulty concentrating and hallucinations.” Her mental
impairments were deemed severe and precluded gainful employment.
Her eligibility for continued benefits was reviewed in 1999. A different ALJ
noted Ortiz’s mental impairments and also reviewed additional medical evidence
indicating she had “spondylolysis and related degenerative change in the lower
lumbar spine.” An IQ test resulted in scores of 67 for verbal, 77 for performance
and 71 for full-scale. The ALJ determined that Ortiz had mild mental retardation
and other severe impairments such as “spondylolysis of the lumbosacral spine and
obesity” and therefore “continues to be disabled.”
Ortiz’s benefits were terminated in 2005 because she failed to supply
requested documentation. Unrepresented by counsel, she reapplied for benefits. A
third ALJ ruled that Ortiz “is not mentally retarded and does not have degenerative
disc disease as was misapprehended in the prior applications.” Benefits were
denied because “new and material evidence shows that the claimant has neither a
severe mental impairment nor a severe physical impairment.”
-2-
II.
Ortiz’s application was denied at the second step of the five-step sequential
evaluation process used to determine whether an individual is disabled for
purposes of receiving disability benefits. See Bowen v. Yuckert,

482 U.S. 137

,
140-42 (1987) (describing five-step process). Ample authority cautions against a
determination of nondisability at step two. See

id. at 153

(noting the step-two
inquiry is intended to identify “claimants whose medical impairments are so slight
that it is unlikely they would be found to be disabled”); Webb v. Barnhart,

433 F.3d 683

, 686 (9th Cir. 2005) (explaining a step-two impairment “may be found
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”) (emphasis in original;
internal quotation marks omitted); Smolen v. Chater,

80 F.3d 1273

, 1290 (9th Cir.
1996) (noting “the step-two inquiry is a de minimis screening device to dispose of
groundless claims”).
Here, the ALJ relied on two mental evaluations diagnosing Ortiz with
depressive and anxiety disorders but not ruling out either a learning disability or
borderline intellectual functioning. This is not the “total absence of objective
evidence of severe medical impairment” that would permit us to affirm “a finding
of no disability at step two.”

Webb, 433 F.3d at 688

(reversing a step-two
determination “because there was not substantial evidence to show that Webb’s
-3-
claim was ‘groundless’”). Moreover, there is evidence in Ortiz’s medical history
indicating she suffers from a severe mental impairment. Indeed, two other ALJs
previously determined that her mental impairment is severe. See Perry v. Heckler,

722 F.2d 461

, 464 (9th Cir. 1983) (noting claimant “enjoys a presumption of
continued disability created by a prior finding of disability”).
At the very least, the circumstances of this case suggest the ALJ “had an
affirmative duty to supplement [Ortiz’s] medical record, to the extent it was
incomplete, before rejecting [her] petition at so early a stage in the analysis.”

Webb, 433 F.3d at 687

. This could have been accomplished by considering her
previous medical history, including the results of her prior psychological
examination. See Corrao v. Shalala,

20 F.3d 943

, 949 (9th Cir. 1994) (noting for
mental impairments, the ALJ “must consider the evidence in the case record – the
mental status examination and psychiatric history”).
III.
We conclude a remand is required to permit the ALJ to continue the
sequential analysis. See Vasquez v. Astrue,

572 F.3d 586