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Michael Smith v. Michael J. Astrue

November 3, 2011


The opinion of the court was delivered by: Robert N. Block United States Magistrate Judge


Plaintiff filed a Complaint herein on February 16, 2011, seeking review of the Commissioner's denial of his applications for disability insurance and Supplemental Security Income benefits. In accordance with the Court's Case Management Order, the parties filed a Joint Stipulation ("Jt Stip") on October 14, 2011. Thus, this matter now is ready for decision.*fn1


As reflected in the Joint Stipulation, the disputed issues that plaintiff is raising The decision in this case is being made on the basis of the pleadings, the as the grounds for reversal and remand are as follows:

1. Whether the Administrative Law Judge ("ALJ") properly considered whether plaintiff meets and/or equals Listing 1.04.

2. Whether the ALJ properly considered the consultative examiner's findings.

3. Whether the ALJ made a proper residual functional capacity ("RFC") assessment.

4. Whether the ALJ posed a complete hypothetical to the vocational expert ("VE").


A. Reversal is not warranted based on the ALJ's alleged failure to make a proper Listings determination.

Disputed Issue No. 1 is directed to the ALJ's finding that plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (hereinafter the "Listings"), where the Commissioner has set forth certain impairments that are presumed to be of sufficient severity to prevent the performance of work. See 20 C.F.R. §§ 404.1525(a), 416.925(a). Specifically, plaintiff contends that the ALJ erred because he only provided analysis of plaintiff's mental impairments, and did not "properly consider any of the musculoskeletal system disorders in his meet or equal analysis, specifically Listing of Impairment 1.04."

At Step Three of the Commissioner's five-step sequential evaluation process, the ALJ must determine whether a claimant's impairment or combination of impairments meets or equals a listed impairment. See Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). However, the burden of proving disability based on the Listings rests with the claimant. See, e.g., Crane v. Barnhart, 224 Fed. Appx. 574, 578 (9th Cir. 2007); Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005); Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996). The mere diagnosis of a listed condition does not establish that a claimant "meets" the Listings. See Young v. Sullivan, 911 F.2d 180, 183-84 (9th Cir. 1990). "For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Sullivan v. Zebley, 493 U.S. 521, 530, 110 S. Ct. 885, 107 L. Ed. 2d 967 (1990); see also 20 C.F.R. §§ 404.1525(d), 416.925(d). Thus, an impairment must correspond in diagnosis, severity, and duration in order to meet a listed impairment. To "equal" a listed impairment, a*fn2 plaintiff "must establish symptoms, signs, and laboratory findings 'at least equal in severity and duration' to the characteristics of a relevant listed impairment, or, if a claimant's impairment is not listed, then to the listed impairment 'most like' the claimant's impairment." Tackett, 180 F.3d at 1099.

The Ninth Circuit has held that "[a]n ALJ must evaluate the relevant evidence before concluding that a claimant's impairments do not meet or equal a listed impairment," and that "[a] boilerplate finding is insufficient to support a conclusion that a claimant's impairment does not do so." Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001) (citing Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990)). However, the Ninth Circuit further held in Lewis, 236 F.3d at 513-14, that an ALJ's lack of formal analysis and findings at Step Three will not constitute reversible error when the ALJ "discussed and evaluated evidence supporting his conclusion" in a different section of his decision; and with respect to equivalency, when plaintiff "offered no theory, plausible or otherwise, as to how his [impairments] combined to equal a listed impairment." See also Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005) ("[a]n ALJ is not required to discuss the combined effects of a claimant's impairments or compare them to any listing in an equivalency determination, unless the claimant presents evidence in an effort to establish equivalence.")

Here, the ALJ discussed and evaluated the evidence supporting his conclusion that plaintiff's physical impairments were not of disabling severity in the parts of his two decisions addressing plaintiff's RFC. Although represented by counsel at both administrative hearings, plaintiff never argued that his physical impairments met or equaled Listing 1.04. Moreover, plaintiff has not even purported to satisfy his burden of showing that he met all of the specified medical criteria of Listing 1.04. The two letters from Dr. Phatak cited by plaintiff in the Joint Stipulation have no bearing whatsoever on that issue. Likewise, the other medical evidence of record cited by plaintiff in the Joint Stipulation supports the diagnosis of a musculoskeletal impairment, but does not establish that plaintiff met all of the specified medical criteria of Listing 1.04. Further, to the extent that plaintiff may be purporting to invoke the "medical equivalence" concept in support of her Listings arguments, the Court finds and concludes that plaintiff also has not met his burden. Under Social Security Ruling ("SSR") 96-6p, the ALJ is permitted to assume from the signatures*fn3 of State agency physicians on their evaluation and transmittal forms that "consideration has been given to the ...

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