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Morgan v. Colvin

United States District Court, Ninth Circuit

August 12, 2013

Mike W. Morgan, Plaintiff,
v.
Carolyn W. Colvin, Commissioner of Social Security, Defendant.

ORDER

DAVID G. CAMPBELL, District Judge.

Plaintiff Mike W. Morgan applied for disability insurance benefits and supplemental security income on May 13, 2008, claiming to have been disabled as of September 15, 2006. Tr. 165. His claim was denied initially on September 18, 2009 (Tr. 90-93), and upon reconsideration on January 6, 2009 (Tr. 99-101). Plaintiff was granted a video teleconference hearing in which he appeared in Phoenix, Arizona, before an Administrative Law Judge ("ALJ") who presided over the hearing from San Jose, California, on November 9, 2010. Tr. 25, 42. The ALJ determined that Plaintiff was not disabled within the meaning of the Social Security Act. Tr. 25-37. The ALJ's decision became Defendant's final decision when the Appeals Council denied review on July 26, 2012. Tr. 1-3. Plaintiff then commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). Doc. 1. The parties have not requested oral argument. For reasons that follow, the Court will affirm Defendant's decision.

I. Standard of Review.

Defendant's decision to deny benefits will be vacated "only if it is not supported by substantial evidence or is based on legal error." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). "Substantial evidence' means more than a mere scintilla, but less than a preponderance, i.e., such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. In determining whether the decision is supported by substantial evidence, the Court must consider the record as a whole, weighing both the evidence that supports the decision and the evidence that detracts from it. Reddick v. Charter, 157 F.3d 715, 720 (9th Cir. 1998). The Court cannot affirm the decision "simply by isolating a specific quantum of supporting evidence." Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975); see Robbins, 466 F.3d at 882.

II. Analysis.

For purposes of Social Security benefits determinations, a disability is "the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 404.1505. Determining whether a claimant is disabled involves a five-step evaluation. The claimant bears the burden in steps one through four of showing that (1) he is not engaged in a substantial gainful activity, (2) he has a severe medically determinable physical or mental impairment, and (3) the impairment meets or equals a listed impairment or (4) his residual functional capacity ("RFC") precludes him from performing his past work.[1] If at any step the Commissioner determines that a claimant is or is not disabled, the analysis ends; otherwise it proceeds to step five. The Commissioner bears the burden at step five of showing that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. See 20 C.F.R. §§ 404.1520(a)(4)(i)-(v) & 416.920(a)(4)(i)-(v).

The ALJ found at step one that Plaintiff had not engaged in substantial gainful activity since his alleged onset date. Tr. 27. At step two, the ALJ found that Plaintiff suffered from the following severe impairments: idiopathic sensory peripheral polyneuropathy and moderate lumbar degenerative disc disease. Id. The ALJ determined at step three that none of these impairments or their combination met or equaled a listed impairment. Tr. 33. The ALJ then considered the entire record and determined that Plaintiff has the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) with the following restrictions: stand for no more than two hours in an eight-hour workday; no more than occasionally push, pull, balance, climb stairs or ramps, and operate foot controls with the lower extremities; never climb ladders, ramps, or scaffolds; no more than frequently stoop, kneel, crouch, and crawl; and avoid moderate exposure to environments with unprotected heights and rapidly moving machinery. Tr. 33. At step four, the ALJ determined that Plaintiff was not disabled because he was capable of performing his past relevant work. Tr. 37.

Plaintiff argues that the ALJ erred by improperly weighing medical opinions (Doc. 13 at 7-17) and by improperly rejecting his symptom allegations ( id. at 17-24). Defendant contends the decision is supported by substantial evidence and free from legal error. Doc. 15 at 1.

A. Medical Opinion Evidence.

"The ALJ must consider all medical opinion evidence." Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008); see 20 C.F.R. § 404.1527(d); SSR 96-5p, 1996 WL 374183, at *2 (July 2, 1996). Regarding the weight that an ALJ should give to a particular medical opinion, the Ninth Circuit distinguishes between the opinions of treating physicians, examining physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). "The ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings." Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). The ALJ may reject the opinion of a treating or examining physician by making "findings setting forth specific legitimate reasons for doing so that are based on substantial evidence in the record." Id. "The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating h[er] interpretation thereof, and making findings." Id.

Opinions of examining or consulting physicians alone may constitute substantial evidence supporting the ALJ's decision when they are consistent with other evidence in the record. See Magallanes v. Bowen, 881 F.2d 747, 752 (9th Cir. 1989) ("[T]he reports of consultative physicians... may serve as substantial evidence."); Morgan v. Comm'r of Soc. Sec. Admin, 169 F.3d 595, 600 (9th Cir. 1999) ("Opinions of a nonexamining, testifying medical advisor may serve as substantial evidence when they are supported by other evidence in the record and are consistent with it."); Thomas, 278 F.3d at 957 ("The opinions of non-treating or non-examining physicians may... serve as substantial evidence when the opinions are consistent with independent clinical findings or other evidence in the record."); see also 20 C.F.R. § 404.1527(f) (stating that the opinions of non-examining physicians constitute medical evidence).

1. Drs. Jose Pierrend, M.D., and Richard Tapia, M.D.

Plaintiff's treating physician, Dr. Pierrend, completed a work-related activities assessment in September 2009. Tr. 516. Dr. Tapia, Plaintiff's other treating physician, completed a similar assessment in October 2010. Tr. 697. In their assessments, Drs. Pierrend and Tapia both opine that Plaintiff suffers from moderate to moderately severe pain and is unable to work fulltime on a regular and consistent basis.[2] Tr. 515-16, 696-97. Dr. Pierrend opined that in an eight-hour workday, Plaintiff could sit and stand for less than one hour, and lift and carry between 10 and 20 pounds. Tr. 696. Dr. Tapia opined that in an eight-hour workday, Plaintiff could sit and stand for less than two hours, and lift and carry between 10 and 15 pounds. Id.

The ALJ gave both treating physicians' opinions "little weight." Tr. 36. The ALJ found that the opinions of Drs. Pierrend and Tapia were "too restrictive" and "inconsistent" with their own objective findings and the medical findings of other medical specialists who found normal neurological processes as well as equal and full motor strength. Id. The ALJ noted that Plaintiff met with Dr. Pierrend in September 2009, when the medical assessment was completed, but did not follow up with Dr. Pierrend again until July 2010. The ALJ therefore "question[ed] the extent of [Dr. Pierrend's] treatment with the claimant." Id. The ALJ noted that Dr. Tapia's treatment notes show that he treated Plaintiff primarily for hypertension, suggesting that "Dr. Tapia might not be in the best position to understand the limitations of the claimant's sensory peripheral neuropathy." Id. The ALJ noted that Plaintiff visited a pain clinic for foot pain, but otherwise did not seek treatment for his alleged ...


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