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Morales v. Astrue

June 29, 2010


The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge



Before the Court is Plaintiff's appeal of a decision by Defendant Social Security Administration ("the Agency"), denying his application for Disability Insurance benefits ("DIB"). Plaintiff claims that the Administrative Law Judge ("ALJ") erred when he: 1) did not find that Plaintiff's right knee ailment amounted to a severe impairment; 2) failed to properly consider the opinions of the treating orthopedists; and 3) determined that Plaintiff's statements regarding his symptoms were not fully credible. (Joint Stip. at 4-5, 9-13, 16-18.) For the following reasons, the ALJ's decision is reversed and the case is remanded for further proceedings.


Plaintiff applied for DIB on November 18, 2005, alleging that he had been unable to work since July 23, 2004, because of lower back pain, carpal tunnel syndrome, pain in his right knee, and sleep apnea. (Administrative Record ("AR") 163-65, 199.) The Agency denied the application initially and on reconsideration. (AR 118-23, 125-29.) Plaintiff then requested and was granted a hearing before an ALJ. (AR 131, 133-34.) Plaintiff appeared with counsel and testified at the hearing on January 30, 2008. (AR 89-117.)

On March 28, 2008, the ALJ issued an unfavorable decision, finding that Plaintiff had not been disabled at any time since July 23, 2004. (AR 7-19.) Plaintiff appealed to the Appeals Council, which denied review. (AR 1-5.) Plaintiff then commenced the instant action.


1. The ALJ Did Not Err At Step Two

In his first claim, Plaintiff contends that the ALJ erred when he failed to find that Plaintiff's right knee condition was a severe impairment at step two. Plaintiff points out that, in 2004, treating orthopedist Dennis Ainbinder diagnosed a torn medial meniscus, made clinical findings of tenderness in the right knee, and opined that Plaintiff would be precluded from all prolonged walking. (Joint Stip. at 5.) For the following reasons, the Court finds that this claim does not warrant remand or reversal.

At step two of the sequential evaluation process, the ALJ is tasked with identifying a claimant's "severe" impairments. 20 C.F.R. § 404.1520(a)(4)(ii). A severe impairment is one that significantly limits an individual's physical or mental ability to do basic work activities. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); 20 C.F.R. § 404.1521(a). The governing regulations define "basic work activities" as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.1521(b). Under Social Security Ruling ("SSR") 85-28, a "determination that an impairment(s) is not severe requires a careful evaluation of the medical findings which describe the impairment(s) and an informed judgment about its (their) limiting effects on the individual's physical and mental ability(ies) to perform basic work activities[.]" The step-two inquiry is intended to be a "de minimis screening device." Smolen, 80 F.3d at 1290 (citing Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987)).

The record supports the ALJ's implicit finding that Plaintiff's 2004 knee injury did not significantly limit his ability to work in 2008. On August 16, 2004, orthopedic surgeon Richard Vanis diagnosed "right knee medial meniscal tear." (AR 252.) Dr. Vanis recommended an MRI of the right knee. (AR 256.) On November 11, 2004, Dr. Ainbinder examined Plaintiff, noting tenderness over the medial joint line and "pain on varus stress of the right knee[,]" but also that Plaintiff walked with a normal gait. (AR 277.) Dr. Ainbinder diagnosed a torn medial meniscus and opined that Plaintiff would be restricted in prolonged walking, kneeling, and climbing and descending stairs. (AR 281.)

After 2004, however, the medical records tell a different story. Plaintiff apparently did not seek medical attention for his right knee in 2005. In February 2006, Dr. Zewdu Gebreyes of HealthCare Partners conducted a complete physical examination and concluded that Plaintiff had no acute problems. (AR 318-19.) The notes from follow-up visits at HealthCare Partners in 2006 and 2007 do not mention right knee complaints. (AR 338-46, 456-57.)

In May 2006, consultative internist Seung Ha Lim examined Plaintiff. (AR 321-25.) Dr. Lim noted that Plaintiff presented a "history of right knee pain since 2004," but found a normal range of motion in Plaintiff's right knee. (AR 321.) Dr. Lim opined that Plaintiff could stand, walk, or sit for about six hours in an eight-hour workday with appropriate breaks. (AR 324.) Dr. Lim also opined that Plaintiff would not be limited in operating foot controls, but that he would be restricted to only occasional climbing and stooping. (AR 325.) Similarly, a state agency reviewing physician completed a physical residual functional capacity assessment on June 20, 2006, opining that Plaintiff could stand, walk, or sit for about six hours in an eight-hour workday, but would be limited to only occasional climbing, balancing, stooping, kneeling, crouching, and crawling. (AR 330-31.)

In a January 2007 chart note, Dr. Vanis noted that he had last seen Plaintiff two years before. (AR 22.) Though Dr. Vanis recorded Plaintiff's complaint of right leg stiffness down to his knee, subsequent progress notes dated February 22 and April 2, 2007 do not mention any right knee symptoms or complaints. (AR 20-21.) All of the disability "certifications" prepared by Dr. Vanis during this timeframe set forth that, in the doctor's opinion, Plaintiff was unable to work because of back pain, only. (AR 24-26.)

In his decision, the ALJ gave substantial weight to Dr. Ainbinder's opinion "as it related to [Plaintiff]'s medical condition in 2004[.]" (AR 17.) The ALJ found that, after that date, no objective evidence established the existence of a right-knee impairment and Plaintiff's complaints of right-knee pain were minimal and sporadic.*fn1 The record supports this view. There is very little if any evidence in the record supporting Plaintiff's claim that in March 2008 the lingering effects of his 2004 knee injury limited his ability to perform basic work activities. As such, the ALJ's finding is affirmed. See also Batson v. Comm'r, Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) (explaining 1) that the Agency's findings must be affirmed if supported by ...

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