De Vivo v. Commissioner of Social Security
Final Judgment and Order re 1 Social Security Complaint signed by Magistrate Judge Erica P. Grosjean on 3/1/2017. CASE CLOSED. (Lundstrom, T)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
MAX M. DE VIVO,
Case No. 1:15-cv-01332-EPG
FINAL JUDGMENT AND ORDER
REGARDING PLAINTIFF’S SOCIAL
COMMISSIONER OF SOCIAL
This matter is before the Court on Plaintiff’s complaint for judicial review of an
unfavorable decision of the Commissioner of the Social Security Administration regarding his
application for disability insurance benefits. The parties have consented to entry of final judgment
by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c) with any appeal
to the Court of Appeals for the Ninth Circuit. (ECF Nos. 10, 11.)
At the hearing on February 28, 2017, the Court heard from the parties and, having
reviewed the record, administrative transcript, the briefs of the parties, and the applicable law,
finds as follows:
For the reasons announced by the Court on the record at the conclusion of the parties’ oral
argument on February 28, 2017, the Court finds that the decision of the Commissioner of Social
Security should be reversed and the case should be remanded for further proceedings. The
Administrative Law Judge found Plaintiff’s mental impairments not severe at step two of the five
step analysis. In doing so, however, the Administrative Law Judge did not discuss reviewing
psychologist Frances Breslin, Ph.D., who found moderate limitations in Plaintiff’s ability to
maintain concentration, persistence, and pace. The Administrative Law Judge also did not discuss
Kathleen Friedland, Ph.D., who found that Plaintiff may have “attention problems” and
difficulties with “complex tasks and instructions.” Finally, the Administrative Law Judge did not
discuss the limitations suggested by Paul Berg, Ph.D., who determined that Plaintiff had
“difficulty managing routine affairs . . . poor memory and concentration and the inability to make
decisions.” The ALJ’s failure to consider these three medical sources constituted legal error.
On remand, the Administrative Law Judge shall examine the record with respect to the
above medical sources and determine whether they should be incorporated in the step two
severity analysis. If they should not be incorporated, the Administrative Law Judge should
explain why. Alternatively, the Administrative Law Judge may incorporate their findings and
continue the analysis using the five step process.
Accordingly, the Court GRANTS Plaintiff’s appeal from the administrative decision of
the Commissioner of Social Security and the case is remanded to the Social Security
Administration. The Clerk of the Court is DIRECTED to enter judgment in favor of Plaintiff Max
De Vivo and against Defendant Nancy A. Berryhill, Acting Commissioner of Social Security.
IT IS SO ORDERED.
March 1, 2017
UNITED STATES MAGISTRATE JUDGE
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