John A Faure v. Carolyn W Colvin

Filing 16

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

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JOHN A. FAURE,
Plaintiff,

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

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CASE NO. ED CV 13-00884 RZ
MEMORANDUM OPINION
AND ORDER

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Plaintiff John Faure returns to this Court after a remand to the Social Security

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Commissioner, now arguing that the most recent Administrative Law Judge made two

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errors in determining that he was not disabled.

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Administrative Law Judge should have found that he met or equaled Listing 1.03, and

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therefore that he was disabled. Second, Plaintiff asserts that the Administrative Law Judge

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wrongly discounted the opinions of the treating physician. The Court finds no error.

First, Plaintiff asserts that the

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A person meeting one of the listings in the Listing of Impairments, 20 C.F.R.

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Part 404, Subpart P, Appendix I, is deemed disabled without further inquiry. Lewis v.

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Apfel, 236 F.3d 503, 512 (9th Cir. 2001). Listing 1.03 is for persons who have had

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reconstructive surgery or surgical arthrodesis (joint fusion) of a major weight-bearing joint.

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There is no evidence that Plaintiff had such surgery. Rather, he had arthroscopic surgery

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to deal with a torn meniscus. [AR 1449] Therefore, Plaintiff did not meet the Listing.

Nor did Plaintiff equal the Listing. The listing states in its entirety:

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1.03. Reconstructive surgery or surgical arthrodesis of a

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major weight-bearing joint, with inability to ambulate

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effectively, as defined in 1.00B2b, and return to effective

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ambulation did not occur, or is not expected to occur, within 12

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months of onset.

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To equal a listing, a person must present medical findings equal in severity to each of the

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requirements of the listing. Kennedy v. Colvin, 738 F.3d 1172 (9th Cir. 2013); Sullivan v.

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Zebley, 493 U.S. 521 (1990). Plaintiff does not show any medical findings equal in

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severity to having reconstructive surgery or surgical arthrodesis. He offers no plausible

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theory that there is such medical equivalence, Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir.

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2001); Kennedy, supra, 738 F.3d at 1177. Unlike in Marcia v. Sullivan, 900 F.2d 172, 176

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(9th Cir. 1990), Plaintiff here has identified no alternative test or other medical findings

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that, if evaluated, might lead to a conclusion of medical equivalence. Under those

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circumstances, the Administrative Law Judge was not required to make any further

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equivalence determination than he did. Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir.

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2005).

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Accordingly, Plaintiff is not entitled to relief on his claim that the
Administrative Law Judge should have found that he met or equaled Listing 1.03.

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Plaintiff also complains that the Administrative Law Judge did not respect the

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opinion of treating physician Dr. Ahmed. An administrative law judge is not required to

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adopt the treating physician’s opinion, so long as he gives specific and legitimate reasons

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for his decision. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.1989). Here, although

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Plaintiff does not specify which opinion he thinks the Administrative Law Judge wrongly

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discounted, the Administrative Law Judge had sufficient evidence to support the finding

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of Plaintiff’s residual capacity, and of Plaintiff’s ability to perform work in the economy.
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He relied on the medical expert to help him evaluate the medical evidence, as he was

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privileged to do. Richardson v. Perales, 402 U.S. 389, 408 (1971). The medical expert did

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not think that Plaintiff was in need of a total knee replacement [AR 1493] , and thought that

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Dr. Ahmed’s assessment of Plaintiff was unduly restrictive. [AR 1485] He pointed to

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objective evidence for his conclusion and, both because he was an orthopedist and because

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he testified consistently with the record, his opinion could be given great weight. Thomas

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v. Barnhart, 278 F.3d 948, 957 (9th Cir. 2002). Plaintiff also complains that the

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Administrative Law Judge did not comment on a check-the-box form that Dr. Ahmed

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provided, but does not specify a particular opinion therein that needed discussion. In any

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event, an administrative law judge is not required to discuss every piece of evidence.

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Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003).
Neither of Plaintiff’s claims merits relief. The decision of the Commissioner

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is affirmed.

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DATED: April 1, 2014

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RALPH ZAREFSKY
UNITED STATES MAGISTRATE JUDGE

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