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ANDERSON v. BARNHART

March 30, 2004.

ROBERT E. ANDERSON, Plaintiff
v.
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant



The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT; REMANDING FOR FURTHER PROCEEDINGS
Plaintiff Robert E. Anderson ("Andersen") brings the above-entitled action pursuant to 42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits ("disability benefits") under the Social Security Act. Before the Court are the parties' cross-motions for summary judgment. Pursuant to the Civil Local Rules of this Court, the motions have been submitted on the papers without oral argument. See Civ. L.R. 16-5. Having considered the papers submitted in support of and in opposition to the motions, the Court rules as follows.

BACKGROUND

  Anderson was born on October 11, 1946. (See Certified Transcript of Administrative Record ("Tr") at 27, 38.) He received an A.A. degree in criminology from Page 2 Canada College in Redwood City in May 1975. (See id. at 39, 126.) Prior to May 19, 1997, he worked for the City and County of San Francisco. as a bus driver for seventeen years, and prior to that, as a custodian for fourteen years. (See Tr. at 121, 413.) Due to chronic back pain, Anderson became unable to work as of May 19, 1997. (See id. at 114.) In January 1999, Anderson was referred to a vocational rehabilitation program, and attempted to obtain a certificate in customer service. (See id. at 411, 405.) Anderson did not complete the requirements for that certificate. (See id. at 401.)

  On June 4, 1999, Anderson applied for disability benefits, claiming disability due to a herniated disc in the lower back and severe back pain, which he contended prevented him from working as a bus driver. (See id. at 114, 120.) The Social Security Administration denied Anderson disability benefits on August 23, 1999. (See id. at 91.) Anderson requested review of that denial on September 23, 1999, and his application was again denied on October 28, 1999. (See id. at 95, 96.) Anderson filed a request for a hearing by an Administrative Law Judge ("ALJ") on November 2, 1999, and a hearing was held on May 25, 2000. (See id. at 101, 33.)

  The ALJ heard testimony from two witnesses: Anderson and John Velton, a vocational expert ("VE"). (See id. at 38, 51.) On June 30, 2000, the ALJ issued his decision and found Anderson not disabled based on the five-step sequential evaluation process of the Social Security Regulations. See 20 C.F.R. § 404.1520.*fn1 The ALJ found Page 3 Anderson (1) was not performing substantially gainful activity, (2) has a medically determinable severe impairment, and (3) did not have a listed impairment because he did not show "the motor weakness" required for lumbar disc disease as stated in the regulations. (See id. at 31.) Before proceeding to steps four and five, the ALJ found Anderson to have the Residual Functional Capacity ("RFC") to do light exertional work, to lift at most twenty pounds, ten pounds frequently, and to stand one to two hours at a time and for a total of six of eight hours in a day. (See id. at 28, 31.) At step four, the ALJ determined that Anderson could not perform his past relevant work as a bus driver given his RFC. (See id. at 29, 31.). The ALJ, at step five, found Anderson not disabled because of the significant number of jobs available to a person with Anderson's RFC, education, age and training. (See id. at 29-30, 31.) In particular, the ALJ concluded that Anderson could perform work in assembly, and as a parking lot attendant, cashier II, or receptionist. (See. id. at 30.)

  Following the ALJ's unfavorable decision, Anderson filed a request for review by the Appeal Council, which was denied on June 7, 2001. (See id. at 4.) Thereafter, Anderson filed this action for judicial review pursuant to 42 U.S.C. § 405(g).

  STANDARD OF REVIEW

  The district court may set aside the Commissioner's denial of disability benefits "if it is not supported by substantial evidence or it is based on legal error." Green v. Heckler, 803 F.2d 528, 529 (9th Cir. 1986) (citation omitted). Substantial evidence is "more than a mere scintilla, but less than a preponderance." See Desrosiers v Secretary of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (citations and internal quotations omitted). "Substantial evidence" is "`such relevant evidence which a reasonable person might accept as adequate to support a conclusion.'" See id. (quoting Richardson v. Perales, 402 U.S. 389, 402 (1971)). In reviewing the ALJ's decision, the Court must "consider the record as a whole weighing both the evidence that supports and the evidence that detracts from the Secretary's conclusion." See id. at 576. The Court may not affirm the ALJ's decision "simply by isolating a specific quantum of supporting evidence." See Page 4 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The Court must "uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation." See Magallanes v. Brown, 881 F.2d 747, 750 (9th Cir. 1989).

  DISCUSSION

  Anderson argues in his motion for summary judgment that the ALJ erred by: (1) rejecting the assessment of Dr. Linda H. Morse ("Dr. Morse"), Anderson's treating physician, without providing specific reasons based on substantial evidence in the record; (2) failing to make specific findings supporting his conclusion that Anderson's complaints of "excess symptoms" were not credible; and (3) relying upon consultative medical opinions that did not contain substantial evidence to support the denial of benefits.

  A. The ALJ Improperly Rejected the Treating Physician's Assessment

  1. Legal Standard

  "Because treating physicians are employed to cure and thus have a greater opportunity to know and observe the patient as an individual, their opinions are given greater weight than the opinions of other physicians." Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996) (citations omitted). Where the treating physician's opinion contradicts the opinion of an examining or consulting physician, the Commissioner must provide "`specific and legitimate reasons' supported by substantial evidence in the record" for rejecting the treating physician's opinion. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)); see also 20 C.F.R. § 404.1527(d)(2) (requiring that Social Security Administration always "give good reasons in [the] notice of determination or decision for the weight [given to the] treating source's opinion"). "`The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.'" Magallanes v. Bowen, 881 F.2d at 751 (quoting Cotton v. Bowen. 799 F.2d 1403, 1408 (9th Cir. 1986)); see, also Social Security Ruling ("SSR") 96-2p ["T]he notice of the determination or decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must Page 5 be sufficiently specific to make dear to any subsequent reviewers the weight the adjudicator gave to the treating source's opinion and the reasons for that weight.")

  2. Anderson's Medical History

  The record reflects that Anderson's history of back pain began in May 1994, when he first experienced pain in his right leg while driving a bus. (See Tr. at 367.) He complained of persistent pain in his right thigh. (See id. at 255-60.) A June 1, 1994 MR! showed disc dessication at L3-L4 and, to a lesser extent, at L4-L5, as well as a central disc extrusion at L3-L4 and a small right lateral protrusion at L4-L5 with possible contact with the exiting right L4 root (See id. at 249.) An October 1994 MRI revealed a herniated disc at the L3-L4 level with an extruded fragment. (See id. at 231.) There appeared to be an impingement of the right L4 nerve root, and a right lateral disc bulge at the L4-L5 level. See id. In December 1994, Anderson had a right L3-4 discectomy, and by January 11, 1995 experienced a fifty to sixty percent improvement in his leg pain. (See id. at 222.) Although Anderson complained of constant lower back pain radiating down his right leg, he returned to work full time in April 1995. (See id. at 205.)

  a. Treatment by Dr. Morse

  On May 19, 1997, Anderson experienced a flareup of pain in his right thigh, and was referred to Dr. Morse at Kaiser Permanente Medical Center in San Francisco. ("Kaiser"). (See id. at 345.) On May 29, 1997, Dr. Morse diagnosed Anderson with "acute L-S disc injury with severe pain" and "L4 radiculopathy," and recommended that Anderson remain away from work for a month. (See id. at 292 & 288-89.) On June 25, 1997, Dr. Morse noted that Anderson was "improving slowly but [was] not even ready for [moderate] duty"; ordered Anderson off work for another month; and diagnosed him with "acute L-5 disc injury with severe pain. (See id. at 287) (emphasis in original)). Anderson never returned to work.

  In her next report, on July 30, 1997, Dr. Morse indicated that surgery was not needed and that Anderson's disc injury was improving. (See id. at 285). Anderson was working out on a treadmill and doing leg exercises, but needed to use a cane for stability. Page 6 (See id. at 285.) Dr. Morse noted, however, that Andersen "will need time for recovery." (See ...


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