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Thompson v. Colvin

United States District Court, W.D. Washington, Seattle

October 23, 2014

MARK DUANE THOMPSON, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

BRIAN A. TSUCHIDA, Magistrate Judge.

Mark Duane Thompson seeks review of the denial of his Supplemental Security Income and Disability Insurance Benefits applications. He contends the ALJ erred by (1) failing to recognize his foot deformity as a severe impairment; (2) improperly discounting his credibility; (3) rejecting the medical opinions of two doctors; and (4) improperly assessing his RFC. Dkt. 13. As discussed below, the Court recommends the Commissioner's decision be AFFIRMED and the case be DISMISSED with prejudice.

BACKGROUND

Mr. Thompson is currently 55 years old, has at least a high school education, and has worked as a cook, bartender, waiter, and fast food manager. Tr. 23-34, 37; Dkt. 13 at 3. On March 17, 2011, he applied for benefits, alleging disability as of May 1, 2008. Tr. 11. His applications were denied initially and on reconsideration. Id. The ALJ conducted a hearing on June 13, 2012, finding Mr. Thompson not disabled. Tr. 25. As the Appeals Council denied Mr. Thompson's request for review, the ALJ's decision is the Commissioner's final decision. Tr. 1-6.

THE ALJ'S DECISION

Utilizing the five-step disability evaluation process, [1] the ALJ found Mr. Thompson had not engaged in substantial gainful activity since the amended alleged onset date; he had severe impairments of major depressive disorder, bipolar I disorder, panic disorder, alcohol dependence in remission, and chronic cocaine dependence; and these impairments did not meet or equal the requirements of a listed impairment.[2] Tr. 13-16. The ALJ found Mr. Thompson had the residual functional capacity to perform a full range of work at all exertional levels, but that he could only perform work in a low stress environment in which there were minimal changes in setting, and in which contact with coworkers, supervisors, and the public would be no more than occasional. Tr. 18. The ALJ found Mr. Thompson was unable to perform his past work, but could perform jobs that exist in significant numbers in the national economy. Tr. 23-24. The ALJ therefore concluded that Mr. Thompson was not disabled. Tr. 25.

DISCUSSION

A. The ALJ Did Not Err at Step Two

At step two, the ALJ found Mr. Thompson's medical record did not establish any severe impairment related to his feet, and that any chronic pain he experienced had been observed to be controlled with ibuprofen. Tr. 15. Mr. Thompson contends the ALJ should have found his foot deformity was a severe impairment. Dkt. 13 at 11, 13.

At step two, Mr. Thompson has the burden of proof to show that (1) he has medically determinable impairments; and (2) his medically determinable impairments are severe. See Bowen v. Yuckert, 482 U.S. 137, 145, (1987); 20 C.F.R. § 404.1520(c). An impairment is medically determinable if it results from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques. 20 C.F.R. § 404.1508. An impairment is severe if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520; 404.1521. "Basic work activities" refers to "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.1521(b).

Mr. Thompson contends the ALJ ignored medical evidence of a severely limiting foot deformity. Dkt. 13 at 11. He contends that if the evidence were credited as true, he would be limited to sedentary work at best. Id. Mr. Thompson points to evidence indicating he had foot pain in March, 2010, and then foot pain associated with a foot injury beginning in or around May, 2010. Tr. 428, 585. In August 2010, pending results of an X-ray, Mr. Thompson was provisionally diagnosed with foot pain and likely needing orthotic shoes. Tr. 395. The next month, a podiatrist examining his X-ray noted he had "increase 1st IM angle, osseous eminence at medial 1st met head with abducted hallux, " and assessed "left foot pain with bunion." Tr. 393. Mr. Thompson complained of foot or ankle pain on a number of other occasions. See Tr. 396, 736, 747. Between January and November 2011, his ankle was noted to be symptomatic but stable, and he was instructed to continue using orthotics. Tr. 896, 971, 1140. In April 2011, Mr. Thompson reported his feet limit his standing to thirty minutes. Tr. 318. At his June 2012 hearing, Mr. Thompson testified he cannot stand more than twenty minutes. Tr. 45. In August 2012, Dr. Johnny Alayon, D.P.M., opined Mr. Thompson should limit his ambulation and standing "to tolerance." Tr. 1168.

On this record, the Court cannot say the ALJ improperly interpreted the evidence to suggest Mr. Thompson's foot impairment was not severe. Mr. Thompson points to no objective medical evidence that his foot/ankle impairment had more than a minimal effect on his ability to work or that it has prevented him from engaging in basic work activities. But even if the ALJ erred, Mr. Thompson has not shown harm. He fails to explain-and the medical evidence does not clarify-how his symptoms would result in any specific work-related limitations. Even the medical source statement from Dr. Alayon is non-specific, limiting Mr. Thompson's standing and ambulation "to tolerance." Tr. 1168. The Court is not aware of any objective medical opinions suggesting Mr. Thompson is limited to sedentary work because of his feet, as Mr. Thompson suggests. As Mr. Thompson has failed to show reversible error at step two, the Court recommends affirming the ALJ's step two findings.

B. The ALJ's Adverse Credibility Determination Should Be Affirmed

Mr. Thompson also contends the ALJ erred in finding him not fully credible. Dkt. 13 at 13-16. Where, as here, there is no evidence of malingering, an ALJ must provide clear and convincing reasons to reject a claimant's testimony. ...


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