Sabina C Herman v. Commissioner of Social Security Administration, No. 8:2011cv01289 - Document 16 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi. IT IS ORDERED THAT judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. (See Order for details) (bem)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SABINA C. HERMAN, 12 13 14 Plaintiff, v. 15 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 16 Defendant. 17 ) Case No. SA CV 11-1289 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 19 Sabina C. Herman ( Plaintiff ) challenges the Social Security 20 Commissioner s ( Defendant ) decision denying her application for disability 21 benefits. Five issues are presented for decision here: 22 1. whether the Administrative Law Judge ( ALJ ) erred in failing to find a 23 severe impairment at step two, (see Joint Stip. at 3-5); 2. whether the ALJ improperly rejected Plaintiff s testimony, (see id. at 8); 24 25 3. whether the ALJ improperly rejected the lay testimony of Plaintiff s 26 husband, Richard Herman, (see id. at 10); 4. whether the ALJ properly considered the opinion of Plaintiff s treating 27 28 physician, Dr. Edward Kaufman, (see id. at 11-12); and 1 5. whether the ALJ properly considered the testimony of the medical 2 expert, Dr. Craig C. Rath. (See id. at 14.) 3 The Court addresses and rejects Plaintiff s contentions below. 4 A. 5 Plaintiff first asserts that the ALJ erred at step two. (Joint Stip. at 3-5.) There, The ALJ s Step Two Determination 6 the ALJ concluded that Plaintiff lacked a medically severe impairment because the 7 medical record was devoid of any treatment notes from the alleged onset date 8 through the date last insured ( DLI ). (AR at 19.) Plaintiff asserts that the ALJ s 9 step two determination was not clearly established by the medical record, as is 10 required by Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). (Joint Stip. at 4.) 11 A severe impairment, so Plaintiff argues, may still exist even if the evidence does 12 not document one. (See id. at 3-5.) This reading of Webb, however, misses the 13 function and purpose of the step two inquiry. 14 Step two serves as a de minimis screening device to dispose of groundless 15 claims. Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001) (quoting 16 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)). To that end, it directs an 17 immediate finding of not disabled when the medical evidence establishes only a 18 slight abnormality [that] would have no more than a minimal effect on an 19 individual s ability to work even if the individual s age, education, or work 20 experience were specifically considered at subsequent steps. SSR 85-28, 1985 WL 21 56856, at *3. 22 Here, as the ALJ noted, the record disclosed no abnormalities, far less than the 23 slight ones contemplated by SSR 85-28. Predictably, then, there would be no effect 24 on Plaintiff s ability to work. Consequently, there would neither be a need at 25 subsequent steps to consider Plaintiff s age, education, or work experience. By 26 preventing unnecessary inquiry, the ALJ properly utilized step two for its intended 27 purpose as a de minimis screening device. 28 Accordingly, the Court determines that the ALJ s step two determination was 2 1 without error. 2 B. The ALJ s Rejection of Plaintiff s Testimony 3 Plaintiff next asserts that the ALJ improperly rejected her testimony as 4 unsupported by the medical record. (Joint Stip. at 8.) The Court disagrees. 5 Once a claimant produces some evidence of an underlying impairment, an 6 ALJ may not reject that claimant s subjective complaints based solely on a lack of 7 supporting objective medical evidence. Rollins v. Massanari, 261 F.3d 853, 856 8 (9th Cir. 2001). 9 Here, as established above, Plaintiff produced no medical records from her 10 alleged onset date to her DLI. See supra, at § A. Thus, Plaintiff did not make the 11 threshold showing of some evidence of an underlying impairment, as is required 12 by Rollins. As a result, the ALJ was entitled to reject Plaintiff s testimony. 13 Accordingly, the Court finds no error here. 14 C. 15 Plaintiff also insists that the ALJ improperly rejected the lay testimony of her The ALJ s Rejection of Richard Herman s Lay Testimony 16 husband, Richard Herman, as similarly unsupported by the medical record. (Joint 17 Stip. at 10.) Relying on Smolen v. Chater, 80 F.3d 1273, 1288-89 (9th Cir. 1996), 18 Plaintiff argues that the ALJ is required to consider a lay witness testimony even 19 where the symptoms are not supported by the medical records. (Id.) 20 Plaintiff s reliance on Smolen, however, is misguided. The authority upon 21 which Smolen relies, SSR 88-13, requires that a medically determinable physical or 22 mental impairment [be] documented before considering evidence, including lay 23 testimony, pertaining to the effects of subjective symptoms. See SSR 88-13, 1988 24 WL 236011, at *1. 25 Here, once again, it is established that no evidence exists in the record 26 documenting Plaintiff s conditions from her alleged onset date to her DLI. See 27 supra, at § A. Thus, under Smolen and SSR 88-13, the ALJ was under no obligation 28 to consider lay testimony such as Mr. Herman s. 3 1 Accordingly, the ALJ did not err in her treatment of Mr. Herman s testimony. 2 D. 3 As her fourth contention, Plaintiff argues that ALJ erred by failing to discuss The ALJ's Failure to Discuss Dr. Kaufman s Treating Opinion 4 an opinion from Plaintiff s treating psychiatrist, Dr. Edward Kaufman. (Joint Stip. 5 at 11; see AR at 214.) The Court is unpersuaded. 6 An ALJ need not discuss all evidence presented to [them]. Rather, [they] 7 must explain why significant probative evidence has been rejected. Vincent v. 8 Heckler, 739 F.2d 1393, 1394-95 (9th Cir.1984) (citing Cotter v. Harris, 642 F.2d 9 700, 706 (3d Cir.1981)). 10 Dr. Kaufman s opinion is neither significant nor probative. Four reasons 11 guide that determination. 12 First, Dr. Kaufman s opinion is conclusory. See Batson v. Comm r of Soc. 13 Sec., 359 F.3d 1190, 1195 (9th Cir. 2004) (holding that an ALJ may reject a treating 14 physician s opinion if it is conclusory, brief, and unsupported). Though Dr. 15 Kaufman s four-sentence letter states that Plaintiff was hospitalized for 16 schizophrenic psychosis in 1988, it offers no further explanation as to the 17 condition s severity or duration. 18 Second, Dr. Kaufman s letter, dated November 19, 2009, seeks to describe 19 Plaintiff s hospitalization over two decades prior without the benefit of any medical 20 records. (See AR at 214.) Naturally, this gives the Court pause as to the opinion s 21 reliability. 22 Third, and contrary to Plaintiff s allegations, the opinion does not discuss any 23 illnesses during the relevant time period, i.e., from the alleged onset date to the DLI. 24 (See Joint Stip. at 11.) According to the opinion, Dr. Kaufman saw Plaintiff for 25 schizophrenic psychosis in 1988, and [a]t that time . . . it was determined that she 26 was not employable at any job. (AR at 214 (emphasis added).) Dr. Kaufman does 27 not indicate whether Plaintiff s condition persists. Though medical opinions can be 28 retroactive, Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988), there is nothing to 4 1 suggest that is the case here. 2 Fourth, Dr. Kaufman s opinion regarding Plaintiff s disability is entitled to 3 little value because that is an issue reserved to the Commissioner . See Nyman v. 4 Heckler, 779 F.2d 528, 531 (9th Cir. 1985) (because opinions by medical experts 5 regarding the ultimate question of disability are not binding[,] . . . [the 6 Commissioner] was not obliged to explicitly detail his reasons for rejecting the 7 [treating physician s] opinion ). 8 Accordingly, the Court determines that the ALJ did not err in her treatment of 9 Dr. Kaufman s opinion. 10 E. The ALJ s Failure to Discuss Dr. Rath s Medical Expert Testimony 11 Plaintiff s final complaint is that the ALJ failed to consider Dr. Rath s medical 12 expert testimony on cross-examination that Plaintiff s marked limitations [c]ould . . 13 . have existed before the DLI. (Joint Stip. at 14; see AR at 252.) According to 14 Plaintiff, this testimony was competent evidence that suggested a different result 15 from the ALJ s, and thus could not be ignored. (Id.); see Gallant v. Heckler, 753 16 F.2d 1450, 1456 (9th Cir. 1984). 17 But Plaintiff mischaracterizes Dr. Rath s testimony. Prior to the above 18 statement, Dr. Rath also testified that he could not find anything in the medical 19 records that would constitute a medically determinable impairment. (AR at 241.) 20 Then, on cross-examination, Dr. Rath conceded, as a matter of possibility, that such 21 an impairment [c]ould . . . have existed before the DLI. (AR at 252.) In light of 22 Dr. Rath s first statement, however, it is clear that the second is mere speculation not 23 based on the record. Thus, the ALJ was entitled to ignore it. See Vincent, 739 F.2d 24 at 1394-95 (an ALJ need not discuss all evidence presented to [them]. Rather, 25 [they] must explain why significant probative evidence has been rejected ). 26 Accordingly, the Court determines that ALJ properly ignored this part of Dr. 27 Rath s testimony. 28 For the above reasons, the Court further finds that substantial evidence 5 1 supported the ALJ s decision that Plaintiff was not disabled. See Mayes v. 2 Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). 3 Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 4 AFFIRMING the decision of the Commissioner denying benefits. 5 6 Dated: November 20, 2012 7 ____________________________________ 8 Hon. Jay C. Gandhi 9 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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