Opinion · Court of Appeals for the Ninth Circuit

Lewis v. Astrue

498 F.3d 909

Type: Opinion
Court: Court of Appeals for the Ninth Circuit
Jurisdiction: Federal
Date: 2007-08-16
Topic: general

holding that failure to consider bursitis at Step 2 was harmless 21 because the impairment was considered at Step 4 | holding that drug-seeking behavior may undermine a claimant’s credibility because it suggests motivation to exaggerate symptoms in order to obtain drugs | holding that the 25 ALJ’s failure to discuss Plaintiff’s bursitis at step two was harmless because he 26 “extensively discussed” it at step four | concluding that any failure to list bursitis as severe at step two was harmless error where ALJ considered any functional limitations imposed by bursitis at step four | holding that a failure to consider an impairment in step two is harmless when its effects are considered in step four—the determination of applicant’s residual functional capacity | holding that when an ALJ accounts for resulting limitations later in the sequential evaluation process, any error in finding the impairment non-severe at Step Two is harmless | concluding that any failure to list bursitis as severe at step two was harmless error where ALJ considered any functional limitations imposed by bursitis at step four | concluding that any failure to list bursitis as severe at step two was harmless error where the ALJ considered functional limitations imposed by bursitis at step four | holding that ALJ’s 6 failure to list a severe impairment at step two was harmless where ALJ considered 7 limitations caused by the condition at step four | holding that where the ALJ considered evidence relating to an impairment at step four, any error in failing to identify that impairment as severe at step two was harmless | holding that any error in not 3 listing a condition as severe at step two was harmless because the ALJ considered 4 the condition when assessing the claimant’s limitations | holding that ALJ’s failure to list plaintiff’s bursitis as a severe impairment at step two was 26 harmless where ALJ considered limitations caused by the condition at step four | holding that ALJ commits reversible error at step two only where severe impairment erroneously excluded and that impairment causes functional limitations that are not accounted for in the RFC | holding that ALJ’s failure to list plaintiff’s bursitis as a severe impairment at step two was 24 harmless where ALJ considered limitations caused by the condition at step four | holding that where the ALJ considered evidence relating to an impairment at step four, any error in failing to identify that impairment as severe at step two was harmless | holding that ALJ commits reversible error at step two only where severe impairment erroneously excluded and that impairment causes functional limitations that are not accounted for in the RFC | holding that ALJ commits reversible error at step two only where severe impairment erroneously excluded and that impairment causes functional limitations that are not accounted for in the RFC | holding that ALJ did not err by failing to consider an impairment at 23 step two because the ALJ considered any limitations posed by that MDI in step four | concluding that any failure to list bursitis as 10 severe at step two was harmless error where ALJ considered any functional 11 limitations imposed by bursitis at step four | holding that where the ALJ considered evidence relating to an impairment at step four, any error in failing to identify that impairment as severe at step two was harmless | holding that ALJ’s failure 6 to list plaintiff’s bursitis as a severe impairment at step two was harmless where ALJ considered 7 limitations caused by the condition at step four | holding that ALJ’s failure to list plaintiff’s bursitis 15 as a severe impairment at step two was harmless where ALJ considered limitations caused by the 16 condition at step four | holding that ALJ’s failure to list plaintiff’s bursitis as a severe 13 impairment at step two was harmless where ALJ considered limitations caused by the 14 condition at step four | concluding that any failure to list bursitis as s

Citator

Cited by: 374 opinions

LEWIS v. ASTRUE,498 F.3d 909(9th Cir. 2007)

William LEWIS, Plaintiff-Appellant, v. Michael J. ASTRUE,^fn*

Defendant-Appellee.

No. 04-17414.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 17, 2006.^fn**

Filed July 3, 2007.

Amended August 16, 2007.

Bess M. Brewer and Eugenie Denise Mitchell, Brewer Mitchell, LLP, Sacramento, CA, for the plaintiff-appellant.

Michael A. Cabotaje, Assistant Regional Counsel, U.S. Social Security Administration, San Francisco, CA, for the defendant-appellee.

Appeal from the United States District Court for the Eastern District of California; Gregory G. Hollows, Magistrate Judge, Presiding. D.C. No. CV-03-01578-GGH.Page 910

Before: J. CLIFFORD WALLACE and SIDNEY R. THOMAS, Circuit Judges, and DAVID A. EZRA,^fn***District Judge.

WALLACE, Senior Circuit Judge:

William Lewis appeals from the district court's judgment following an order denying his motion for summary judgment and granting the Commissioner of Social Security's (Commissioner) motion for summary judgment. We have jurisdiction under28 U.S.C. § 1291, and affirm the district court's summary judgment in favor of the Commissioner.

Lewis applied for supplementary security income on May 24, 2000 and it was denied. Lewis requested a hearing, which was held on April 18, 2002. Lewis testified at the hearing, as did Stephen Schmidt, a vocational expert. Irwin Weinreb, M.D., an internist, testified by telephone as a medical expert.

The administrative law judge (ALJ) conducted a five-step sequential evaluation process in determining that Lewis was not disabled under section 1614(a)(3)(A) of the Social Security Act,42 U.S.C. § 1382c(a)(3)(A).See20 C.F.R. § 416.920(a) (providing for a five-step evaluation process). At Step 1, the ALJ determined that Lewis had not performed substantial gainful activity since April 18, 1988. Next, at Step 2, she considered whether Lewis had a "severe impairment." She concluded that Lewis was "impaired as a result of status post laminectomy and diabetes mellitus" and that due to these impairments, Lewis could not perform heavy lifting and was severely impaired. At Step 3, the ALJ determined that Lewis's severe impairments did not meet or equal a listed impairment under the regulations.

Next, at Step 4, the ALJ analyzed whether Lewis was able to do past relevant work, and determined that he was not. In reaching this conclusion, the ALJ considered the effects of Lewis's prior back surgery and diabetes. In addition to the back pain and diabetes, the ALJ also considered his "trochanteric bursitis and osteoarthritis of the left knee." The ALJ stated that Dr. Madireddi, a physiatrist who examined Lewis, observed that Lewis had a full range of motion in all joints and good motor strength; that he had reduced sensation in the left leg; that he needed a brace to walk long distances; that he was restricted from prolonged standing and walking; that he could not do repetitive squatting, kneeling, crouching, and crawling; and that he complained of pain with prolonged sitting. Further, the ALJ observed that x-rays of Lewis's knees showed "spurring at the patella," which the radiologist had interpreted as "minimal osteoarthritic changes of the left knee."

The ALJ also recounted some evidence that tended to show that Lewis engaged in drug-seeking behavior. Evidence of drug addiction included testimony from doctors, Lewis's behavior in hospitals, Lewis's admitted history of drug addiction, and the strength of the narcotics that Lewis was taking. The ALJ agreed with Dr. Weinreb, who testified that Lewis engaged in drug-seeking behavior. She also found Lewis's testimony not credible.

At Step 5, the ALJ accepted the vocational expert's testimony concerning the existence of jobs that could accommodate Lewis's limitations. She found that the number of jobs cited by the vocational expert constituted a significant number ofPage 911jobs in the economy, and concluded that Lewis was not disabled.

Lewis requested review of the ALJ decision by the Appeals Council. The Appeals Council denied review, making the ALJ decision the final decision of the Commissioner. Lewis sought judicial review of the ALJ decision by the district court. The district court concluded that the ALJ's assessment was fully supported by substantial evidence in the record, and based on proper legal standards. Lewis timely appealed.

II.

Lewis contends that the ALJ erred by failing to consider his bursitis at Step 2 of the sequential analysis.¹We review de novo the district court's order upholding the Commissioner's final denial of benefits.Tidwell v. Apfel,161 F.3d 599,601(9th Cir.1999) (as amended). We affirm the district court if the Commissioner's decision was supported by substantial evidence and based on proper legal standards.Sandgathe v. Chater,108 F.3d 978,980(9th Cir.1997). "Substantial evidence is more than a scintilla but less than a preponderance — it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion."Orteza v. Shalala,50 F.3d 748,749(9th Cir.1995). "[I]f evidence is susceptible of more than one rational interpretation, the decision of the ALJ must be upheld."Id.

The medical records reflect that Lewis underwent knee surgery in 1984 and suffered from "left-sided greater trochanter bursitis" after the operation. In addition to medical records supporting that Lewis had a knee injury, Lewis's counsel stated at the April hearing that the injury prevented Lewis from "performing the necessary physical exertional work to engage in any sedentary work. . . ."

Even assuming that the ALJ erred in neglecting to list the bursitis at Step 2, any error was harmless.Cf. Stout v.Comm'r, Soc. Sec. Admin.,454 F.3d 1050,1054-55(9th Cir.2006) (discussing harmless error analysis in the Social Security context). The ALJ extensively discussed Lewis's bursitis at Step 4 of the analysis, observing that "[t]he claimant also had left-sided greater trochanteric bursitis." The decision also stated that x-rays showed osteoarthritic changes in Lewis's left knee; that Lewis's straight leg raise was "negative"; that Lewis had decreased sensation in his left leg; that Lewis was restricted from prolonged standing and walking; and that Lewis could not do repetitive squatting, kneeling, crouching, and crawling. The decision reflects that the ALJ considered any limitations posed by the bursitis at Step 4. As such, any error that the ALJ made in failing to include the bursitis at Step 2 was harmless.AFFIRMED.

Michael J. Astrue is substituted for his predecessor Jo Anne Barnhart as Commissioner of the Social Security Administration. Fed.R.App.P.43(c)(2). ↩
This panel unanimously finds this case suitable for decision without oral argument.SeeFed.R.App.P.34(a)(2). ↩
The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. ↩
We have addressed Lewis's other contentions in an unpublished disposition. ↩