John A Faure v. Carolyn W Colvin

Filing 16

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

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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOHN A. FAURE, Plaintiff, 12 13 14 15 16 vs. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. ED CV 13-00884 RZ MEMORANDUM OPINION AND ORDER 17 Plaintiff John Faure returns to this Court after a remand to the Social Security 18 Commissioner, now arguing that the most recent Administrative Law Judge made two 19 errors in determining that he was not disabled. 20 Administrative Law Judge should have found that he met or equaled Listing 1.03, and 21 therefore that he was disabled. Second, Plaintiff asserts that the Administrative Law Judge 22 wrongly discounted the opinions of the treating physician. The Court finds no error. First, Plaintiff asserts that the 23 A person meeting one of the listings in the Listing of Impairments, 20 C.F.R. 24 Part 404, Subpart P, Appendix I, is deemed disabled without further inquiry. Lewis v. 25 Apfel, 236 F.3d 503, 512 (9th Cir. 2001). Listing 1.03 is for persons who have had 26 reconstructive surgery or surgical arthrodesis (joint fusion) of a major weight-bearing joint. 27 There is no evidence that Plaintiff had such surgery. Rather, he had arthroscopic surgery 28 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: 1 2 3 1.03. Reconstructive surgery or surgical arthrodesis of a 4 major weight-bearing joint, with inability to ambulate 5 effectively, as defined in 1.00B2b, and return to effective 6 ambulation did not occur, or is not expected to occur, within 12 7 months of onset. 8 9 To equal a listing, a person must present medical findings equal in severity to each of the 10 requirements of the listing. Kennedy v. Colvin, 738 F.3d 1172 (9th Cir. 2013); Sullivan v. 11 Zebley, 493 U.S. 521 (1990). Plaintiff does not show any medical findings equal in 12 severity to having reconstructive surgery or surgical arthrodesis. He offers no plausible 13 theory that there is such medical equivalence, Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 14 2001); Kennedy, supra, 738 F.3d at 1177. Unlike in Marcia v. Sullivan, 900 F.2d 172, 176 15 (9th Cir. 1990), Plaintiff here has identified no alternative test or other medical findings 16 that, if evaluated, might lead to a conclusion of medical equivalence. Under those 17 circumstances, the Administrative Law Judge was not required to make any further 18 equivalence determination than he did. Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 19 2005). 20 21 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. 22 Plaintiff also complains that the Administrative Law Judge did not respect the 23 opinion of treating physician Dr. Ahmed. An administrative law judge is not required to 24 adopt the treating physician’s opinion, so long as he gives specific and legitimate reasons 25 for his decision. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.1989). Here, although 26 Plaintiff does not specify which opinion he thinks the Administrative Law Judge wrongly 27 discounted, the Administrative Law Judge had sufficient evidence to support the finding 28 of Plaintiff’s residual capacity, and of Plaintiff’s ability to perform work in the economy. -2- 1 He relied on the medical expert to help him evaluate the medical evidence, as he was 2 privileged to do. Richardson v. Perales, 402 U.S. 389, 408 (1971). The medical expert did 3 not think that Plaintiff was in need of a total knee replacement [AR 1493] , and thought that 4 Dr. Ahmed’s assessment of Plaintiff was unduly restrictive. [AR 1485] He pointed to 5 objective evidence for his conclusion and, both because he was an orthopedist and because 6 he testified consistently with the record, his opinion could be given great weight. Thomas 7 v. Barnhart, 278 F.3d 948, 957 (9th Cir. 2002). Plaintiff also complains that the 8 Administrative Law Judge did not comment on a check-the-box form that Dr. Ahmed 9 provided, but does not specify a particular opinion therein that needed discussion. In any 10 event, an administrative law judge is not required to discuss every piece of evidence. 11 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 12 13 is affirmed. 14 15 DATED: April 1, 2014 16 17 18 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 -3-

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