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Sabina C. Herman v. Michael J. Astrue

November 20, 2012

SABINA C. HERMAN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Hon. Jay C. Gandhi United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Sabina C. Herman ("Plaintiff") challenges the Social Security Commissioner's ("Defendant") decision denying her application for disability benefits. Five issues are presented for decision here:

1. whether the Administrative Law Judge ("ALJ") erred in failing to find a severe impairment at step two, (see Joint Stip. at 3-5);

2. whether the ALJ improperly rejected Plaintiff's testimony, (see id. at 8);

3. whether the ALJ improperly rejected the lay testimony of Plaintiff's husband, Richard Herman, (see id. at 10);

4. whether the ALJ properly considered the opinion of Plaintiff's treating physician, Dr. Edward Kaufman, (see id. at 11-12); and

5. whether the ALJ properly considered the testimony of the medical expert, Dr. Craig C. Rath. (See id. at 14.)

The Court addresses -- and rejects -- Plaintiff's contentions below.

A. The ALJ's Step Two Determination

Plaintiff first asserts that the ALJ erred at step two. (Joint Stip. at 3-5.) There, the ALJ concluded that Plaintiff lacked a medically severe impairment because the medical record was "devoid of any treatment notes" from the alleged onset date through the date last insured ("DLI"). (AR at 19.) Plaintiff asserts that the ALJ's step two determination was not "clearly established" by the medical record, as is required by Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). (Joint Stip. at 4.) A severe impairment, so Plaintiff argues, may still exist even if the evidence does not document one. (See id. at 3-5.) This reading of Webb, however, misses the function and purpose of the step two inquiry.

Step two serves as a "'de minimis screening device to dispose of groundless claims.'" Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001) (quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)). To that end, it directs an immediate finding of "not disabled" when the "medical evidence establishes only a slight abnormality [that] would have no more than a minimal effect on an individual's ability to work even if the individual's age, education, or work experience were specifically considered" at subsequent steps. SSR 85-28, 1985 WL 56856, at *3.

Here, as the ALJ noted, the record disclosed no abnormalities, far less than the slight ones contemplated by SSR 85-28. Predictably, then, there would be no effect on Plaintiff's ability to work. Consequently, there would neither be a need at subsequent steps to consider Plaintiff's age, education, or work experience. By preventing unnecessary inquiry, the ALJ properly utilized step two for its intended purpose as a de minimis screening device.

Accordingly, the Court determines that the ALJ's step two determination was without error.

B. The ALJ's Rejection of Plaintiff's Testimony Plaintiff next asserts that the ALJ improperly rejected her testimony as unsupported by the medical record. ...


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