John Senter v. Michael J. Astrue, No. 2:2010cv00165 - Document 15 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh: For the reasons set forth above, the Court finds that the Agency's findings are supported by substantial evidence and are free from material legal error. The decision is, therefore, affirmed. IT IS SO ORDERED. **PLEASE REVIEW DOCUMENT FOR FULL AND COMPLETE DETAILS** (ca)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 JOHN SENTER, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-165 PJW MEMORANDUM OPINION AND ORDER 16 17 I. 18 INTRODUCTION 19 Plaintiff appeals a decision by Defendant Social Security 20 Administration ( the Agency ), denying his application for Disability 21 Insurance benefits ( DIB ). 22 Judge ( ALJ ) erred when he: (1) concluded that Plaintiff s back 23 impairment was not severe; and (2) failed to consider the opinions of 24 the treating and examining doctors. 25 21.) 26 within the meaning of the Social Security Act is supported by 27 substantial evidence, it is affirmed. 28 He claims that the Administrative Law (Joint Stip. at 3-7, 9-13, 16- Because the Agency s decision that Plaintiff was not disabled 1 II. 2 SUMMARY OF FACTS AND PROCEEDINGS 3 Plaintiff applied for DIB on October 31, 2006, alleging that he 4 had been unable to work since February 1, 1991, due to back problems 5 which caused pain. (Administrative Record ( AR ) 116-18, 157.) The 6 Agency denied his application initially and on reconsideration. (AR 7 44-48, 50-55.) 8 ALJ. 9 counsel and testified at the hearing. He then requested and was granted a hearing before an (AR 56, 59-64.) On January 13, 2009, Plaintiff appeared with (AR 18-39.) On July 13, 2009, 10 the ALJ issued a decision denying benefits. 11 appealed to the Appeals Council, which denied review. 12 then filed suit in this court. 13 Plaintiff (AR 1-4.) He III. 14 (AR 5-14.) ANALYSIS 15 1. Not Severe 16 17 The ALJ s Determination That Plaintiff s Back Impairment Was Plaintiff contends that the ALJ erred when he found that 18 Plaintiff s back impairment was not severe. 19 For the following reasons, the Court concludes that the ALJ did not 20 err and that, even if he did, any error was harmless. 21 (Joint Stip. at 3-7.) At step two, the ALJ is tasked with identifying a claimant s 22 severe impairments. 20 C.F.R. § 404.1520(a)(4)(ii). Severe 23 impairments are impairments that significantly limit an individual's 24 physical or mental ability to do basic work activities.1 25 Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); 20 C.F.R. § 404.1521(a). Smolen v. 26 27 28 1 The governing regulations define basic work activities to include physical functions such as walking, sitting, lifting, pushing, pulling, reaching, carrying, or handling. 20 C.F.R. § 404.1521(b). 2 1 In addition, to meet the test at step two, the impairment(s) must last 2 for at least 12 months. 3 An impairment is not severe if it is merely a slight abnormality (or 4 combination of slight abnormalities) that has no more than a minimal 5 effect on the ability to do work activities. 6 F.3d 683, 686 (9th Cir. 2005) (quoting Social Security Ruling ( SSR ) 7 No. 96-3p). 8 screening device." 9 482 U.S. 137, 153-54 (1987)). 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii). Webb v. Barnhart, 433 The step-two inquiry is intended to be a "de minimis Smolen, 80 F.3d at 1290 (citing Bowen v. Yuckert, [A]n ALJ may find that a claimant 10 lacks a medically severe impairment . . . only when his conclusion is 11 clearly established by medical evidence. 12 (quoting SSR 85-28). Webb, 433 F.3d at 687 13 The ALJ found that Plaintiff s lumbar spine degenerative disc 14 disease was a medically determinable impairment, noting that Plaintiff 15 underwent a lumbar discectomy in July 1989 and lumbar spine surgery in 16 May 1991 and that he was treated intermittently for complaints of back 17 pain between 1992 and 1994. 18 determined that the impairment was not severe prior to September 30, 19 1995 -the last date Plaintiff was insured--because there was no 20 evidence that his impairment significantly limited his ability to 21 perform basic work activities for a period of 12 consecutive months.2 22 (AR 11.) 23 reports prepared during the relevant period and that no treating or (AR 10-11.) Nevertheless, the ALJ The ALJ noted that Plaintiff had not submitted any medical 24 2 25 26 27 28 Plaintiff had the burden to show that he was disabled prior to his date last insured. See Armstrong v. Comm r, 160 F.3d 587, 589 (9th Cir. 1998); see also Flaten v. Sec y of Health & Human Servs., 44 F.3d 1453, 1458 (9th Cir. 1995) ( If the claimant was not disabled on the last day that [he] was insured under the Act, then [he] cannot recover disability benefits for a new period of disability with an onset date after expiration of insured status[.] ). 3 1 examining doctor had found that he had functional limitations 2 expected to last for at least 12 continuous months prior to his date 3 last insured.3 4 (AR 13.) Plaintiff argues that the record does not support the ALJ s 5 finding that his back impairment was not severe. 6 there is significant evidence showing that this impairment had more 7 than a minimal effect on his ability to do basic work activities. 8 (Joint Stip. at 6.) 9 Plaintiff misses the point. He believes that The ALJ did not find that 10 Plaintiff s impairment was not severe because it did not affect his 11 ability to do basic work activities. 12 there was no evidence that Plaintiff s back problems lasted for more 13 than 12 months. 14 finding. 15 between 1991 and 1995 Plaintiff suffered from back pain that often 16 caused him to seek treatment, they do not establish that Plaintiff s 17 back problems persisted for 12 months at a time. 18 269, 273, 275, 276, 277, 279, 282, 434, 438, 439.) 19 that, during this period, Plaintiff was often forced to see a doctor 20 when he hurt himself performing various activities, like jumping six 21 feet onto a movie set (Plaintiff had been a stunt man), pushing a car, 22 carrying a boat, lifting things out of his truck, or being knocked 23 around on a boat trip to Central America. 24 455.) 25 medication and released, often returning for follow-up. (AR 13.) Instead, the ALJ concluded that The record arguably supports the ALJ s Though numerous medical records in the file show that (AR 201, 243, 268, Rather, they show (AR 267-70, 276, 278, 453, Following these incidents, Plaintiff was usually treated with Nothing in 26 27 28 3 The ALJ discounted Plaintiff s testimony to the extent that it was inconsistent with these findings. (AR 12-13.) Plaintiff has not challenged the credibility finding. 4 1 these records suggests that the doctors expected Plaintiff to be 2 severely limited for a year by his back pain. 3 mention regarding duration that the Court could decipher in the 400+ 4 pages of medical records is a chart note by Plaintiff s surgeon 5 following back surgery on May 25, 1991, in which the doctor 6 anticipated that Plaintiff would be disabled until September 1, 1991. 7 (AR 197.) 8 finding that Plaintiff s back impairment was not severe because the 9 evidence did not establish that it lasted for a period of 12 months.4 10 Further, even if the Court were to agree with Plaintiff that the In fact, the only Thus, a fair reading of this record supports the ALJ s 11 ALJ erred in concluding at step two that the impairment was not 12 severe, it would find that the error was harmless. 13 harmless in this context if it does not affect the ultimate non- 14 disability determina-tion. 15 (9th Cir. 2007) (holding error in finding an impairment non-severe at 16 step two was harmless when ALJ accounted for resulting limitations 17 later in sequential evaluation process); and Stout v. Comm'r, 454 F.3d 18 1050, 1055 (9th Cir. 2006) (defining harmless error as one that is 19 "inconsequential to the ultimate non-disability determination"). 20 An error is See Lewis v. Astrue, 498 F.3d 909, 911 In addition to finding that Plaintiff s impairment was not 21 severe, the ALJ made two alternative findings. 22 that, even if Plaintiff s impairment was severe, Plaintiff was capable 23 of performing sedentary work and, thus, could perform his prior job as 24 a proofreader. (AR 13 n.1.) First, he concluded Second, he found that, if Plaintiff 25 26 27 28 4 The Court has not overlooked the records that show that there were times during this period when Plaintiff was forced to seek treatment for back pain that was not triggered by any particular event, but, again, these records do not demonstrate that Plaintiff s pain would persist for more than 12 months. 5 1 could not work as a proofreader and the ALJ had to consult the 2 Medical-Vocational Guidelines, Rule No. 201.27 directed a finding of 3 not disabled as of his alleged onset date. 4 does not challenge these alternative findings. 5 (AR 13 n.1.) Plaintiff For all these reasons, Plaintiff s claim does not support 6 reversal. The ALJ s decision that the medical evidence did not 7 establish the durational requirement is supported by substantial 8 evidence. 9 that error harmless. Even if it were not, the ALJ s alternative findings render 10 2. 11 In his remaining claims of error, Plaintiff contends that the ALJ 12 erred when he failed to address the 2007 opinions of the examining and 13 treating physicians. 14 reasons, the Court concludes that these claims do not require 15 reversal, either. 16 The Treating and Examining Doctors Opinions (Joint Stip. at 9-13, 16-21.) For the following The examining doctor examined Plaintiff on January 18, 2007 -more 17 than 11 years after Plaintiff s insurance expired -and concluded that 18 he suffered from chronic pain syndrome with symptoms radiating down to 19 his legs. 20 discomfort and significantly impaired, and limited him to lifting and 21 carrying no more than ten pounds occasionally and five to ten pounds 22 frequently; walking, standing, and sitting for less than two hours in 23 an eight-hour workday for no more than ten minutes at a time; and no 24 postural activities (such as climbing, balancing, or kneeling). 25 351). (AR 347-51.) He opined that Plaintiff is in severe (AR 26 Eight months later, on August 8, 2007, Plaintiff s treating 27 physician filled out a form, setting forth her opinion that Plaintiff 28 could only lift or carry less than ten pounds; sit, stand, or walk 6 1 less than two hours in an eight-hour day, with the need to alternate 2 positions every ten to fifteen minutes; and never twist, stoop, 3 crouch, or climb ladders. 4 Plaintiff should avoid even moderate exposure to temperature extremes, 5 humidity, noise, and fumes; and found that his pain would seriously 6 limit his ability to focus, perform at a consistent pace, understand 7 and carry out detailed instructions, and deal with stress. 8 378-79.) 9 (AR 374-75.) She also concluded that (AR 376, The ALJ did not mention either doctor s opinion in his decision. 10 This was error. 11 critical evidence and ALJs are required to provide specific and 12 legitimate reasons for rejecting them. 13 830 (9th Cir. 1995); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 14 1989); but see Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) 15 (affirming ALJ s decision despite the fact that he failed to mention 16 letter from treating psychiatrist that the circuit court found was not 17 persuasive). 18 consider them because they addressed Plaintiff s condition 11 years 19 after his date last insured is rejected. 20 impossible to know why the ALJ failed to mention these opinions. 21 is quite possible that he simply overlooked them. 22 is to set forth the opinions and provide reasons for discounting them. 23 The opinions of treating and examining doctors are Lester v. Chater, 81 F.3d 821, The Agency s argument that the ALJ was not required to Based on this record, it is It The better practice That being said, however, the Court finds that the ALJ s failure 24 to consider these opinions was harmless. They address Plaintiff s 25 condition in 2007 and are not relevant to Plaintiff s condition before 26 September 1995. 27 disability in 1995. 28 at *5 (D. Ida. Mar. 25, 2011) (holding ALJ s rejection of treating As such, they are not probative of the issue of See, e.g., Capobres v. Astrue, 2011 WL 1114256, 7 1 doctor s opinion not error where it was completed nearly two-and-a- 2 half years after claimant s date last insured and was not offered as 3 retrospective analysis). 4 reasonable ALJ would have come to a different disability determination 5 after considering these opinions. 6 1428, 1433 (9th Cir. 1995) (holding ALJ properly discounted 7 physician's retrospective opinion because it did not contain 8 assessment of claimant s functional capacity prior to the date last 9 insured).5 Further, because they are not probative, no See Johnson v. Shalala, 60 F.3d 10 IV. 11 CONCLUSION 12 For the reasons set forth above, the Court finds that the 13 Agency s findings are supported by substantial evidence and are free 14 from material legal error. 15 IT IS SO ORDERED. 16 Dated: August 4, 2011 The decision is, therefore, affirmed. 17 18 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 S:\PJW\Cases-Soc Sec\SENTER, J 165\MemoOpinion.wpd 24 5 25 26 27 28 Plaintiff argues that his treating physician s opinion showed a longitudinal perspective, suggesting that she must have been addressing his condition as of 1995. (Joint Stip. at 18, 21, 23.) A plain reading of the treating doctor s 2007 opinion, however, undermines this argument. (AR 374-76.) The opinion focuses solely on Plaintiff s condition at that time and does not discuss his condition in 1995. 8
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