Sidney F Lewis v. Michael J Astrue, No. 2:2012cv02679 - Document 29 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. (ib)

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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SIDNEY F. LEWIS, Plaintiff, 12 13 14 15 16 vs. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. CV 12-02679 RZ MEMORANDUM OPINION AND ORDER 17 As explained below, the matter must be remanded for further proceedings. 18 Under the regulations, if a treating physician s medical opinion is supported 19 by medically acceptable diagnostic techniques and is not inconsistent with other substantial 20 evidence in the record, the treating physician's opinion is given controlling weight. 20 21 C.F.R. § 404.1527(d)(2); see also Social Security Ruling (SSR) 96-2p. An ALJ may reject 22 the uncontradicted medical opinion of a treating physician only for clear and convincing 23 reasons supported by substantial evidence in the record. Holohan v. Massanari, 246 F.3d 24 1195, 1202 (9th Cir. 2001) (footnote and citation omitted). Here, the treating physician 25 stated his opinion that Plaintiff suffered pain from spinal impairments, that he would need 26 to rest during the workday, that he could stand and/or walk a total of 4 hours in a work day, 27 that he could sit for six hours, that he could lift 10 pounds frequently, that he could do no 28 1 bending at the waist, and that he occasionally needed the assistance of a cane and might 2 need a back brace. [AR 207-10] 3 The Administrative Law Judge rejected the treating physician s opinion, 4 stating that it appears to be based on the claimant s subjective complaints and not on 5 physical examination results or short-term history of medication treatment. [AR 17] 6 While it is true that where a physician s opinion rests on the subjective complaints of a 7 claimant which the Administrative Law Judge discredits, that the opinion itself also is 8 discredited, Sandgathe v. Chater, 108 F.3d 978, 980 (1997), that was not the situation here. 9 As the physician noted, Plaintiff suffers from spinal stenosis, a fact which had been verified 10 by an MRI examination. The physician s opinion thus was supported by medically 11 acceptable diagnostic techniques. Further, there was no medical evidence to the contrary, 12 and thus it was consistent with the other medical evidence in the record. Accordingly, as 13 explained in Holohan, supra, it was entitled to controlling weight. 14 The Administrative Law Judge also identified only a physical impairment [AR 15 15], but he erred in not concluding that Plaintiff also suffered from a severe mental 16 impairment. The regulations do not define a severe impairment. Instead, they state what 17 a non-severe impairment is: one that does not significantly limit physical or mental ability 18 to do basic work activities. 20 C.F.R. §§ 404.1521, 416.921. The basic work activities are 19 the abilities and aptitudes necessary to do most jobs, including various physical and 20 mental activities. Id. The requirement of having a severe impairment performs a 21 gatekeeping function, screening out frivolous complaints. Bowen v. Yuckert, 482 U.S. 137, 22 153 (1987). In its internal procedures, the Social Security Administration assesses an 23 impairment as non-severe if it has no more than a minimal effect on the individual s 24 ability to do basic work functions. SSR 85-28. This minimalist treatment has received the 25 Courts imprimatur. Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988); Smolen v. 26 Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). Thus, the requirement that a claimant have 27 a severe impairment has been transmogrified into a requirement that the claimant have an 28 impairment that is not very severe at all it simply must have more than a minimal effect -2- 1 on his or her ability to do basic work functions. When the Commissioner rests his decision 2 on the failure to satisfy the severity requirement, that decision, as with any other, must rest 3 on substantial evidence within the record. Smolen v. Chater, supra, 80 F.3d at 1289-90. 4 Plaintiff saw two mental health professionals for consultative examinations. 5 The Administrative Law Judge stated that the results of the first examination were 6 invalidated by the examining psychologist due to malingering behavior, [AR 16] and that 7 the second was based almost entirely on self-report tests and therefore was not to be relied 8 upon, given Plaintiff s history of having malingered on his first examination. [AR 17] The 9 Administrative Law Judge also stated that there was a total lack of psychological treatment, 10 which he thought was not consistent with a claim of a completely disabling mental 11 impairment. [Id.] 12 Malingering is not an accurate characterization of the record. Presumably the 13 Administrative Law Judge used it because the first psychologist administered a test entitled 14 Test of Memory Malingering. (Plaintiff has pointed out that, internally, the Social 15 Security Administration thinks little of this test, and instructs its employees not to purchase 16 it. (Plaintiff s Memorandum in Support of Complaint at 3 n.1).) Although the title uses 17 the term malingering, the test does not appear to demonstrate a false claim of illness; 18 rather, according to the psychologist, it is an effort level task. [AR 130] The 19 psychologist stated that Plaintiff performed below expected levels suggestive of a 20 suboptimal level of effort. [Id.] The various other tests did not produce reliable results 21 because Plaintiff did not give enough effort. It is important to note, however, that the tests 22 referred to were those which were neurocognitive screeners, measurement of intelligence, 23 and measurement of verbal and visual memory. [AR 130-31] They were not tests 24 evaluating depression or affect. The Court does not understand how suboptimal effort on 25 those psychometric tests invalidates the subsequent results of an examination conducted 26 by a different psychologist ten months later. The subsequent testing also included a test 27 assessing the validity of the responses, and concluded that [n]o evidence of exaggeration 28 of [sic: or] feigning was found. [AR 215] -3- 1 The Administrative Law Judge also stated that Plaintiff did not have a record 2 of treatment for mental health issues. Much of the time, of course, Plaintiff was 3 incarcerated. In addition, however, the inference drawn by the Administrative Law Judge 4 is not accurate. Often people in need of mental health treatment do not recognize the need 5 or are unable to bring themselves to seek treatment; indeed, one might suspect that the 6 more debilitating depression is, the less likely a person is to seek treatment. 7 The Commissioner has stated that [i]f an adjudicator is unable to determine 8 clearly the effect of an impairment or combination of impairments on the individual s 9 ability to do basic work activities, the sequential evaluation should not end with the not 10 severe evaluation step. S.S.R. No. 85-28 (1985). Step two, then, is a de minimis 11 screening device [used] to dispose of groundless claims, Smolen, 80 F.3d at 1290, and an 12 ALJ may find that a claimant lacks a medically severe impairment or combination of 13 impairments only when his conclusion is clearly established by medical evidence. S.S.R. 14 85-28. Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). Here, the evidence is at best 15 ambiguous, and the Administrative Law Judge therefore should have concluded that 16 Plaintiff had a severe mental impairment, and proceeded from there. 17 The Administrative Law Judge committed an additional error in his 18 assessment of Plaintiff s credibility. To begin with, it is unclear the purpose for which the 19 Administrative Law Judge was evaluating Plaintiff s credibility. He did not identify any 20 specific testimony or exhibits that raised any credibility issues, as the cases require him to 21 do. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). He did state that Plaintiff was 22 not credible to the extent that Plaintiff complained of impairments that were inconsistent 23 with the residual functional capacity [AR 16], a statement found in every decision this 24 Court has seen for the last several years, and a statement that is meaningless. 25 Beyond the fact that the Administrative Law Judge did not identify testimony 26 that was not credible, he also erred in the evaluation that he did undertake. He said that 27 Plaintiff s broad range of daily activity is not consistent with a finding of total disability, 28 [AR 17], but the activity he identified was hardly broad and, in most cases, was inactivity -4- 1 cleaning a little, taking out the trash, buying groceries, watching television and sitting 2 at the bus stop. These are not matters that are in any way inconsistent with a notion of 3 compromised ability to work because of spinal stenosis. The Administrative Law Judge 4 also stated that he had fashioned a residual functional capacity that took into account 5 Plaintiff s complaint of back pain. [AR 17] This is not true, however, if Plaintiff s 6 complaints of back pain were to be believed, because the light work which the 7 Administrative Law Judge found Plaintiff could perform may well involve more walking 8 and standing than his treating physician said he was capable of. This really is not a reason 9 for finding Plaintiff not credible, of course, but is a further explication of the error of not 10 accepting the treating physician s opinion. Likewise, the fact that Plaintiff may have 11 started medication only relatively recently does not gainsay the nature of the impairment 12 a narrowing of the spinal canal and the attendant pain, and it is hard to see the 13 pharmacopiae that Plaintiff uses as evidence of conservative treatment indicating that his 14 pain is overstated. 15 Finally, the Administrative Law Judge wrongly rejected the testimony of the 16 lay witness. He stated that he considered her corroborating testimony, but that he could 17 not grant her statements greater evidentiary weight than I do to the medical evidence. 18 [AR 18] There may be some virtue to such a statement in the abstract, see, e.g., Lewis v. 19 Apfel, 236 F.3d 503, 511 (9th Cir. 2001), but here there was no medical evidence 20 contradicting the lay witness. 21 Administrative Law Judge rejected, that of the treating physician and the examining mental 22 health consultant. It was error here to reject the lay witness testimony. See Bruce v. 23 Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). The only medical evidence was that which the 24 The decision of the Commissioner is reversed, and the matter is remanded for 25 further administrative proceedings. On remand, the Commissioner shall accept the treating 26 /// 27 /// 28 /// -5- 1 physician s opinions as to Plaintiff s physical capabilities as true, and shall otherwise 2 proceed consistently with the matters stated herein. 3 IT IS SO ORDERED. 4 5 DATED: June 10, 2013 6 7 8 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-

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