Sean Thompson v. Carolyn W. Colvin

Filing 19

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

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SEAN THOMPSON,
Plaintiff,

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vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

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Defendant.

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CASE NO. CV 14-00142 RZ
MEMORANDUM OPINION
AND ORDER

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Plaintiff Sean Thompson challenges the Social Security Commissioner’s

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decision denying him disability benefits on several grounds. Finding his arguments

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unpersuasive, the Court affirms.

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Plaintiff first asserts that the Administrative Law Judge erred in declining to

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find severe impairments based on physical limitations. Plaintiff asserts that the record

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contains evidence of knee problems, hypertension, tinnitus, obesity and gastrointestinal

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reflux disease. The Administrative Law Judge, however, only found severe mental

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impairments. [AR 16]

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The regulations do not define what constitutes a “severe” impairment.

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Instead, they state what a non-severe impairment is: one that does not significantly limit

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physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1521, 416.921.

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The basic work activities are “the abilities and aptitudes necessary to do most jobs,”

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including various physical and mental activities. Id. The requirement of having a severe

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impairment performs a gatekeeping function, screening out frivolous complaints. Bowen

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v. Yuckert, 482 U.S. 137, 153 (1987). In its internal procedures, the Social Security

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Administration assesses an impairment as “non-severe” if it has no more than a minimal

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effect on the individual’s ability to do basic work functions. SSR 85-28. This minimalist

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treatment has received the Courts’ imprimatur. Yuckert v. Bowen, 841 F.2d 303, 306 (9th

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Cir. 1988); Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). Thus, the requirement

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that a claimant have a severe impairment has been transmogrified into a requirement that

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the claimant have an impairment that is not very severe at all — it simply must have more

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than a minimal effect on his or her ability to do basic work functions. When the

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Commissioner rests his decision on the failure to satisfy the severity requirement, that

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decision, as with any other, must rest on substantial evidence within the record. Smolen

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v. Chater, supra, 80 F.3d at 1289-90.

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The primary physical ailment referenced in the record concerns Plaintiff’s
knees. The Administrative Law Judge found as follows:

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The undersigned does not find a severe impairment related to the

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claimant’s knee. The claimant had surgery on his knee over 10

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years ago and there is little evidence from his treating sources

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regarding any knee problems after the amended alleged onset

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date [May 5, 2006] (Exhibit 7F). Examination of the claimant’s

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knee on January 24, 2012 showed only crepitance [sic], with no

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effusion or obvious deformity (Exhibit 13F at 3).

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consultative examiner examined the claimant and found that the

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claimant could stand 6 hours of an 8 hour day. This suggests

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that the claimant’s knee would not functionally impact the

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The

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claimant or significantly limit the claimant’s ability to perform

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work-related activities and is, thus, non-severe.

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[AR 18]

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Plaintiff makes essentially two challenges to this finding. First, he asserts that

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the record contains a variety of references to Plaintiff’s knee problems, implying that

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therefore the finding of non-severity must be erroneous. Second, he asserts that the

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examining physicians recommended limitations based on physical impairments, and thus

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that the Administrative Law Judge erred in finding no severe physical impairment. Neither

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argument carries the day.

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Plaintiff’s argument about the record references to his knee problems carries

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no weight, for Plaintiff has mis-cited the record in numerous respects. He asserts that a

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September 7, 2009 V.A. report states that Plaintiff is totally disabled because of his knee

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pain (Plaintiff’s Memorandum at 5:8-9). The report, however, is from 2004, not 2009

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[AR 286], and Plaintiff alleged that his onset date was two years later, in 2006. [AR 14]

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Plaintiff alleges that in July 2010 he again “received treatment for bilateral knee pain, when

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he was diagnosed with degenerative disease in his knees and was recommended to have

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another knee MRI.” (Plaintiff’s Memorandum at 5:22-23). The MRI, however, revealed

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“normal knees without evidence of acute knee osseous degenerative disease, unchanged

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in six years.” [AR 259] Plaintiff states that “[o]n October 8, 2010 he was noted to have

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a tear in the medial cartilage or meniscus of his knee and knee arthralgia.” (Plaintiff’s

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Memorandum at 5:23-25.) In fact, however, it was a history that was prepared on

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October 8, 2010, and it showed that it was on September 13, 2004 (as noted above, before

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Plaintiff’s onset date) that Plaintiff had a tear of medial cartilage or meniscus of knee. [AR

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263] Plaintiff states that on March 7, 2011, “he was noted to have bilateral knee pain with

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intermittent swelling.” (Plaintiff’s Memorandum at 5:25-26.) In fact, however, Plaintiff

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complained of these symptoms (on February 14, 2011, not on March 7, 2011 [AR 248]),

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and he had failed to keep an appointment for an MRI to evaluate them, because of lack of
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transportation [AR 248]; the assessment plan stated “Will need MRI.” [AR 249] The

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record does not contain the results of a subsequent MRI, so far as the Court can tell; as

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noted, an MRI performed just seven months earlier had shown normal knees that had not

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changed when compared to MRI’s performed six years earlier. [AR 259] Plaintiff states

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that he received medical treatment through the parole department in 2012, and his left knee

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pain “was repeatedly referenced.” One of those “references” concerned an evaluation in

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2010, not 2012 [AR 259] and two of the three other references were to 2004, not 2012.

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[AR 407, 416] In short, Plaintiff’s description of the record with respect to his knees

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largely shows various record references that have nothing to do with severity as of the

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pertinent time; the argument is not persuasive as a reason to overturn the Administrative

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Law Judge’s determination of non-severity.

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Nor does Plaintiff’s second argument fare any better. Plaintiff notes that the

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state agency’s internal medicine consultative examiner diagnosed Plaintiff with bilateral

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knee pain with a torn meniscus in his left knee. The doctor’s diagnosis, however, derived

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from Plaintiff himself. The information in the report was obtained from Plaintiff, and the

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doctor had no records available to review. [AR 219] He had no MRI to review [id.] and

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no x-rays or other diagnostics were referred to in the report either. In short, there was no

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verification of Plaintiff’s statement that Plaintiff had a tear of his meniscus at the time that

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he saw the doctor.

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The subsequent non-examining state physician, Plaintiff states, interpreted the

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examining physician’s opinion as supporting a finding that “plaintiff was more aptly

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limited to light work.” [AR 239] In fact, however, the state physician said that the

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consultant’s opinion “may reduce him to functionally light.” [AR 239, emphasis added]

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The state physician, then, was not definitive as Plaintiff has suggested, and was merely

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interpreting the opinion of the examining physician which was, as noted, based only on

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Plaintiff’s reporting and not on the results of the MRI, taken just a few months before the

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state physician’s statement.

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In short, the arguments made do not show any error in the Administrative Law

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Judge’s determination that Plaintiff’s knee problems did not constitute a severe

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impairment. Substantial evidence supported the Administrative Law Judge’s determination

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on this issue.

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As Plaintiff notes, the record also contains references to tinnitus, obesity,

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hypertension and GERD. The record does not show, however, that any of these matters,

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separately or together, imposed any limitations on Plaintiff’s ability to perform basic work

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functions, which is the definition of severity. An administrative law judge is not required

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to discuss all evidence, only probative evidence, and need not explain why he is not

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discussing non-probative evidence. Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir.

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1984). Likewise, an administrative law judge need not present limitations in a hypothetical

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question to a vocational expert, if those limitations have not been proven by the claimant.

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See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (“the ALJ did not err in

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omitting the other limitations that [the claimant] had claimed, but had failed to prove.”).

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The additional physical problems fall into these categories.

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Plaintiff also asserts that the Administrative Law Judge wrongly discredited

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the opinion of Plaintiff’s treating psychiatrist Dr. Flynn. Dr. Flynn submitted check lists

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and short answers on a questionnaire indicating that Plaintiff was greatly restricted by his

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mental impairments. [AR 421 et seq.] In contrast, the consulting psychiatrists imposed

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few limitations. [AR 217, 235] The Administrative Law Judge, perhaps giving Plaintiff

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some benefit of the doubt, imposed greater restrictions than the consultants had, although

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he gave little weight to the suggestions of the treating physician Dr. Flynn. [AR 20]

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“To reject the opinion of a treating physician which conflicts with that of an

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examining physician, the ALJ must ‘“make findings setting forth specific, legitimate

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reasons for doing so that are based on substantial evidence in the record.”’ [citations

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omitted] ‘The ALJ can meet this burden by setting out a detailed and thorough summary

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of the facts and conflicting clinical evidence, stating his interpretation thereof, and making

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findings.’ [citation omitted].” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).
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The Administrative Law Judge complied with this standard, addressing several

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reasons that he could not accept the significant limitations Dr. Flynn recommended. He

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noted that there was no objective evidence supporting such significant limitations; that

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Plaintiff’s mental health treatment notes showed that Plaintiff generally was doing well,

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and that he responded well to medication; and that the treatment records repeatedly showed

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that Plaintiff was working, a fact that was inconsistent with the level of functioning that Dr.

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Flynn found. [AR 20] Plaintiff disputes these findings, but they are within the province

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of the Administrative Law Judge to make. Batson v. Commissioner of Social Security, 359

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F.3d 1190, 1195 (9th Cir. 2004).

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Plaintiff also asserts that the Administrative Law Judge wrongly discounted

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his credibility. The Administrative Law Judge noted Plaintiff’s assertions that he had had

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emotional problems since his accident, was depressed all the time, has panic attacks and

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tries to avoid being around people. [AR 19] He then gave reasons for not entirely

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crediting this testimony: that the treatment evidence does not support the allegations; that

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the treatment was limited and conservative; that there was no evidence that medications

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were not working, once the appropriate dosages were determined; and that Plaintiff saw

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Dr. Flynn only about four times. [AR 20] An administrative law judge is entitled to use

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ordinary techniques of evaluating evidence when judging credibility as to subjective

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symptoms. Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). Inconsistency with

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objective evidence, while insufficient if standing alone, nevertheless is a relevant factor.

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Rollins v. Massanari, 261 F. 3d 853, 857 (9th Cir. 2001). So is conservative treatment.

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Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995). So is the efficacy of medication.

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Warre v. Commissioner of Social Security Administration, 439 F.3d 1001, 1006 (9th Cir.

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2006). The Administrative Law Judge thus acted appropriately in evaluating Plaintiff’s

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subjective symptoms.
In accordance with the foregoing, the decision of the Commissioner is

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affirmed.

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DATED: October 30, 2014

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RALPH ZAREFSKY
UNITED STATES MAGISTRATE JUDGE

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