Delgado v. Commissioner of Social Security Administration

FILED
NOT FOR PUBLICATION DEC 11 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FRANK DELGADO, No. 11-16301
Plaintiff - Appellant, D.C. No. 1:09-cv-01819-GSA
v.
MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Gary S. Austin, Magistrate Judge, Presiding
Submitted December 7, 2012 **
San Francisco, California
Before: SILVERMAN, GOULD, and CHRISTEN, Circuit Judges.
Frank Delgado appeals the district court’s decision affirming the
Commissioner of Social Security’s denial of his application for disability insurance
benefits under Title II of the Social Security Act. Delgado alleged disability from
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
post-traumatic stress disorder. At Step 2, the ALJ determined that Delgado’s
medically determinable impairments were not severe. Delgado challenges this
finding and the ALJ’s treatment of evidence. We conclude that substantial
evidence does not support the ALJ’s determination that Delgado’s impairments
were not severe and his case could be resolved at Step 2, and instead conclude that
the evidence established that Delgado has a severe mental impairment. We reverse
and remand the case for the requisite Step-3 analysis.
“[T]he step-two inquiry is a de minimis screening device to dispose of
groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). An
impairment or combination of impairments can be found “not severe” only if the
evidence establishes a slight abnormality that has “no more than a minimal effect
on an individuals [sic] ability to work.” Id. at 1290.
In his findings of fact, the ALJ discussed the opinion of Dr Manzano,
Delgado’s treating physician, that Delgado’s “ability to make occupational,
performance, and personal/social adjustments are fair to poor.” Also, Dr. Manzano
noted that Delgado “can maintain concentration and attention for at least two hour
increments except during times of stress.” Based on this evidence accepted by the
ALJ in his findings of fact, we conclude that Delgado has met his burden of
showing severe impairment under Step 2’s de minimis standard. See Smolen, 80
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F.3d at 1290. After finding the impairment “severe,” the ALJ should have moved
to the next step in the five-step process. See Edlund v. Massanari, 253 F.3d 1152,
1160 (9th Cir. 2001) (citing SSR 96-3p, 1996 WL 374181 (July 2, 1996)).
We reverse and remand and instruct the ALJ to continue to Step 3. Because
the ALJ will have the opportunity to further develop the record on remand, we do
not address Delgado’s other evidentiary arguments. We also express no view on
whether Delgado will be able to meet his burden at Steps 3, 4, and 5. See Webb v.
Barnhart, 433 F.3d 683, 688 (9th Cir. 2005).
REVERSED and REMANDED.
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