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John Senter v. Michael J. Astrue

August 4, 2011


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



Plaintiff appeals a decision by Defendant Social Security Administration ("the Agency"), denying his application for Disability Insurance benefits ("DIB"). He claims that the Administrative Law Judge ("ALJ") erred when he: (1) concluded that Plaintiff's back impairment was not severe; and (2) failed to consider the opinions of the treating and examining doctors. (Joint Stip. at 3-7, 9-13, 16-21.) Because the Agency's decision that Plaintiff was not disabled within the meaning of the Social Security Act is supported by substantial evidence, it is affirmed.


Plaintiff applied for DIB on October 31, 2006, alleging that he had been unable to work since February 1, 1991, due to back problems which caused pain. (Administrative Record ("AR") 116-18, 157.) The Agency denied his application initially and on reconsideration. (AR 44-48, 50-55.) He then requested and was granted a hearing before an ALJ. (AR 56, 59-64.) On January 13, 2009, Plaintiff appeared with counsel and testified at the hearing. (AR 18-39.) On July 13, 2009, the ALJ issued a decision denying benefits. (AR 5-14.) Plaintiff appealed to the Appeals Council, which denied review. (AR 1-4.) He then filed suit in this court.


1. The ALJ's Determination That Plaintiff's Back Impairment Was Not Severe

Plaintiff contends that the ALJ erred when he found that Plaintiff's back impairment was not severe. (Joint Stip. at 3-7.) For the following reasons, the Court concludes that the ALJ did not err and that, even if he did, any error was harmless.

At step two, the ALJ is tasked with identifying a claimant's "severe impairments." 20 C.F.R. § 404.1520(a)(4)(ii). Severe impairments are impairments that significantly limit an individual's physical or mental ability to do basic work activities.*fn1 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); 20 C.F.R. § 404.1521(a).

In addition, to meet the test at step two, the impairment(s) must last for at least 12 months. 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii). An impairment is not severe "if it is merely a slight abnormality (or combination of slight abnormalities) that has no more than a minimal effect on the ability to do work activities." Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting Social Security Ruling ("SSR") No. 96-3p). 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)). "[A]n ALJ may find that a claimant lacks a medically severe impairment . . . only when his conclusion is 'clearly established by medical evidence.'" Webb, 433 F.3d at 687 (quoting SSR 85-28).

The ALJ found that Plaintiff's lumbar spine degenerative disc disease was a medically determinable impairment, noting that Plaintiff underwent a lumbar discectomy in July 1989 and lumbar spine surgery in May 1991 and that he was treated intermittently for complaints of back pain between 1992 and 1994. (AR 10-11.) Nevertheless, the ALJ determined that the impairment was not severe prior to September 30, 1995---the last date Plaintiff was insured--because there was no evidence that his impairment significantly limited his ability to perform basic work activities for a period of 12 consecutive months.*fn2

(AR 11.) The ALJ noted that Plaintiff had not submitted any medical reports prepared during the relevant period and that no treating or examining doctor had found that he had "functional limitations expected to last for at least 12 continuous months" prior to his date last insured.*fn3 (AR 13.)

Plaintiff argues that the record does not support the ALJ's finding that his back impairment was not severe. He believes that there is significant evidence showing that this impairment had more than a minimal effect on his ability to do basic work activities. (Joint Stip. at 6.)

Plaintiff misses the point. The ALJ did not find that Plaintiff's impairment was not severe because it did not affect his ability to do basic work activities. Instead, the ALJ concluded that there was no evidence that Plaintiff's back problems lasted for more than 12 months. (AR 13.) The record arguably supports the ALJ's finding. Though numerous medical records in the file show that between 1991 and 1995 Plaintiff suffered from back pain that often caused him to seek treatment, they do not establish that Plaintiff's back problems persisted for 12 months at a time. (AR 201, 243, 268, 269, 273, 275, 276, 277, 279, 282, 434, 438, 439.) Rather, they show that, during this period, Plaintiff was often forced to see a doctor when he hurt himself performing various activities, like jumping six feet onto a movie set (Plaintiff had been a stunt man), pushing a car, carrying a boat, lifting things out of his truck, or being knocked around on a boat trip to Central America. (AR 267-70, 276, 278, 453, 455.) Following these incidents, Plaintiff was usually treated with medication and released, often returning for follow-up. Nothing in these records suggests that the doctors expected Plaintiff to be severely limited for a year by his back pain. In fact, the only mention regarding duration that the Court could decipher in the 400 pages of medical records is a chart note by ...

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