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Fierros v. Colvin

United States District Court, C.D. California

April 29, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.


SHERI PYM, Magistrate Judge.



On June 5, 2013, plaintiff Victor Fierros filed a complaint against defendant, the Commissioner of the Social Security Administration ("Commissioner"), seeking review of a denial of Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Both plaintiff and defendant have consented to proceed for all purposes before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c).

Plaintiff presents four disputed issues for decision: (1) whether the ALJ properly determined that plaintiff did not have a severe impairment under step two; (2) whether the ALJ failed to give the appropriate weight to the opinion of plaintiff's treating physician, Dr. Khashayar, and thus erred at step three; (3) whether the ALJ erred in discrediting the lay witness statements of plaintiff's sister; and (4) whether the ALJ properly determined plaintiff's residual functional capacity ("RFC").

Having carefully studied, inter alia, the parties' written submissions, the Administrative Record ("AR"), and the decision of the ALJ, the court concludes that, as detailed herein, there is substantial evidence in the record, taken as whole, to support the ALJ's decision. First, the ALJ's failure to find plaintiff has a severe combination of mental impairments was harmless error. Second, the ALJ properly gave minimal weight to Dr. Khashayar's opinion. Third, the ALJ properly rejected the lay witness testimony of plaintiff's sister. And fourth, the ALJ's RFC assessment and step five determination properly accounted for plaintiff's mental impairments. Therefore, the court affirms the Commissioner's decision denying benefits.



Plaintiff, who was twenty-two years old on his alleged disability onset date, is a high school graduate and has completed some college courses.[1] AR at 38, 39, 263, 267, 288. He has past work experience as a pet groomer, theater custodian, and clerk. Id. at 289, 295. But because his earned income never exceed $3, 800 in any year, the work does constitute substantial gainful activity. Id. at 20; 20 C.F.R. 404.1571

On January 14, 2009, plaintiff applied for DIB and SSI, alleging an onset date of September 1, 2004, due to a right hand injury and anxiety. AR at 263-69, 288. The Commissioner denied plaintiff's application initially and upon reconsideration, after which he filed a request for a hearing. Id. at 125-45.

On April 12, 2010, plaintiff, unrepresented by counsel, appeared and testified at a hearing before the ALJ. AR at 72-103. A vocational expert and plaintiff's mother also testified. Id. at 74, 96-103. The ALJ found that plaintiff had a severe right hand impairment but not a severe mental impairment and could perform work that did not involve more than frequent fine and gross manipulation with the right upper extremity. Id. at 111-18. Accordingly, the ALJ denied benefits on June 25, 2010. Id. at 118.

Plaintiff requested administrative review of the June 25, 2010 denial, and on June 20, 2011 the Appeals Council ("AC") granted his request and remanded his claim for a new administrative hearing and decision. Id. at 123-24. The AC instructed that, upon remand, the ALJ must: obtain additional evidence concerning plaintiff's impairments in order to complete the AR in accordance with regulatory standards regarding consultative examinations and existing medical evidence; further evaluate plaintiff's mental impairment in accordance with 20 C.F.R. §§ 404.1520a and 416.920a; further consider plaintiff's maximum RFC during the entire period at issue, and provide the rationale with specific reference to the evidence of record in support of assessed limitations; and if warranted, obtain evidence from a vocational expert. Id.

On remand, plaintiff had three hearings. During the first two hearings, no testimony was heard and the ALJ re-scheduled the hearing. Id. at 63-71. At his final hearing on November 6, 2012, held before a new ALJ, plaintiff, represented by counsel, testified, as did a vocational expert. Id. at 36-61. On November 30, 2012, the ALJ denied plaintiff's claims for benefits. Id. at 17-27.

Applying the five-step sequential evaluation process, the ALJ found, at step one, that the plaintiff has not engaged in substantial gainful activity since September 1, 2004. Id. at 20.

At step two, the ALJ found that plaintiff has the following severe combination of impairments: history of right hand laceration and open fracture, status post open reduction of right ring finger dislocation, close of the laceration of the volar surface of the right ring finger, and application of volar splint; post traumatic stress syndrom; major depressive disorder; and panic disorder with agoraphobia. Id. But the ALJ concluded that these mental impairments, considered singly and in combination, do not cause more than minimal limitation and are therefore non-severe. Id. at 20-21.

The ALJ found, at step three, that plaintiff's impairment does not meet or medically equal one of the listed impairments set forth in the Listings. Id. at 21-22.

The ALJ then assessed plaintiff's RFC, [2] and determined that plaintiff retains the RFC to perform "medium" work with the following limitations: "he can frequently climb ladders, ropes, scaffolds, ramps and stairs; balance; stoop; kneel; crouch; and crawl. He can frequently handle and finger with the right upper extremity. In addition, he is limited to simple, routine, repetitive work that does not involve directing others or abstract through and planning, that involves only simple work-related decisions and routine workplaces changes, and that is performed under occasional supervision with no direct interaction with the public, only occasional interaction with co-works, and no tandem tasks." Id. at 22.

At step four, the ALJ found that plaintiff has no past relevant work. Id. at 25.

Finally, at step five, the ALJ concluded that there are jobs that exist in significant numbers in the national economy that plaintiff can perform, including rack loader, night cleaner, and machine feeder. Id. at 25-26. Consequently, the ALJ concluded that plaintiff does not suffer from a disability as defined by the Social Security Act. Id. at 26.

Plaintiff filed a timely request for review of the ALJ's decision ( id. at 6-12), which was denied by the AC. Id. at 1-3. The ALJ's decision stands as the final decision of the Commissioner.



This court is empowered to review decisions by the Commissioner to deny benefits. 42 U.S.C. § 405(g). The findings and decision of the Commissioner must be upheld if they are free of legal error and supported by substantial evidence. Mayes v. Massanari , 276 F.3d 453, 458-59 (9th Cir. 2001) (as amended). But if the court determines that the ALJ's findings are based on legal error or are not supported by substantial evidence in the record, the court may reject the findings and set aside the decision to deny ...

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