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Norman Vincent Milner, Sr v. Michael J. Astrue

October 30, 2012

NORMAN VINCENT MILNER, SR., PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Stephen J. Hillman United States Magistrate Judge

MEMORANDUM DECISION) AND ORDER

This matter is before the Court for review of the decision by the Commissioner of Social Security denying plaintiff's applications for Disability Insurance Benefits and for Supplemental Security Income. Pursuant to 28 U.S.C. § 636(c), the parties have consented that the case may be handled by the undersigned. The action arises under 42 U.S.C. § 405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The plaintiff and the defendant have filed their pleadings (Plaintiff's Brief in Support of Relief Requested in Plaintiff's Complaint["Plaintiff's Brief"]; Memorandum of Points and Authorities in Support of Defendant's Answer ["Defendant's Brief"]; Plaintiff's Reply Brief ["Plaintiff's Reply"]), and the defendant has filed the certified transcript of record. After reviewing the matter, the Court concludes that the decision of the Commissioner should be reversed and remanded.

In January 2007, plaintiff Norman Milner, Sr. filed an application for a period of disability or Disability Insurance Benefits. On February 21, 2007, plaintiff filed an application for Supplemental Security Income. Both applications alleged an inability to work since January 23, 2006, due to a lower back injury. (See Administrative Record ["AR"] 139, 292-38). On June 29, 2009 (following hearings on December 4, 2008 and February 25, 2009, see AR 67-129), an Administrative Law Judge ("ALJ") issued a partially favorable decision. The ALJ determined that plaintiff had a severe impairment -- degenerative lumbar disc disease status post three surgeries -- and found that plaintiff was disabled within the meaning of the Social Security Act for the closed period from January 23, 2006 through January 21, 2008, but not beginning on January 22, 2008. (See AR 139-49).

On March 15, 2010, the Appeals Council affirmed the ALJ"s finding that plaintiff was disabled from January 23, 2006 to January 21, 2008, but remanded the matter to the ALJ for further proceedings solely with respect to the issue of disability beginning on January 22, 2008. (See AR 154-56).

On October 22, 2010 (following a supplemental hearing on September 13, 2010), the ALJ determined that plaintiff had the following severe impairment -- degenerative lumbar disc, status post operative times three -- but found that plaintiff was not disabled beginning on January 22, 2008. (See AR 16-25).

Following the Appeals Council's denial of plaintiff's request for a review of the hearing decision (see AR 1-6), plaintiff filed this action in this Court.

Plaintiff makes five challenges to the 2010 Decision denying disability benefits for the period after January 21, 2008. Plaintiff alleges the ALJ erred in (1) failing to consider all of plaintiff's severe impairments, (2) failing to give appropriate weight to plaintiff's treating physician and the examining physician; (3) failing to consider both severe and non-severe impairments when assessing plaintiff's residual functional capacity; (4) failing to properly assess plaintiff's credibility; and (5) failing to comply with the Appeal Council's remand order.

For the reasons discussed below, the Court concludes that plaintiff's first claim of error does not have merit, and that plaintiff's second claim of error has merit. Since the Court is remanding the matter based on plaintiff's second claim of error, the Court will not address plaintiff's third through fifth claims of error.*fn1

DISCUSSION

ISSUE NO. 1:

Plaintiff asserts that the ALJ failed to consider all of plaintiff's severe impairments, specifically chest pains with cardiac symptoms and a mental impairment (AR 474-75). Defendant argues that the ALJ did not need to consider plaintiff's chest pains, and that the ALJ did consider plaintiff's mental impairment.

"An impairment or combination of impairments is not severe if it does not significantly limit [the claimant's] physical and mental ability to do work activities." 20 C.F.R. § 404.1521(a). "[T]he ALJ must consider the combined effect of all of the claimant's impairments on her ability to function, without regard to whether each alone was sufficiently severe." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). The ALJ also must "consider the claimant's subjective symptoms, such as pain or fatigue, in determining severity." Id. An impairment or combination of impairments is not severe "if the evidence establishes a slight abnormality that has 'no more than a minimal effect on a individual's ability to work.'" Id.; Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988).

With respect to plaintiff's chest pains with cardiac symptoms (AR 474 [notation in medical record, dated May 5, 2010, that plaintiff was assessed with "costochondritis (chest pain from ribs)" and physician "reviewed cardiac symptoms with patient"]), the ALJ did not need to discuss it because there was no indication that plaintiff's chest pain symptoms were long-term or had any effect on plaintiff's ability to work (AR 474 [noting that plaintff "is generally health [sic] appearing and in no acute distress"]).*fn2 See Vincent v. Heckler, 739 F.2d 1393, 1996 (9th Cir. 1984) ("The Secretary, however, need not discuss all evidence presented to her. Rather, she must explain why "significant probative evidence has been rejected.'").

With respect to plaintiff's mental impairment (AR 474-75 [notation in medical record, dated May 5, 2010), the ALJ explicity considered it. (See AR 20 [noting that plaintiff "was complaining of anxiety and depression and that the doctor diagnosed depression" and "there was no clinical signs of depression reported other than [plaintiff's] statement that he felt worthless and was not sleeping well, but [plaintiff] reportedly denied suicidal and homicidal ideation, and the doctor other than counseling [plaintiff] and providing some general health information and brochure(s) did not provide any medication or referral for further treatment."). Substantial evidence supported the ALJ's conclusion that the duration requirement necessary to establish a mental impairment had not been satisfied (AR 20). See 20 C.F.R. ยงยง 404.1509 and 404 416.909 ("Unless your impairment is expected to result in death, it ...


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