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United States District Court, S.D. California

October 3, 2005.

MELANIE A. LAHR, Plaintiff,

The opinion of the court was delivered by: NAPOLEON JONES, District Judge


Before the Court are Magistrate Judge Brooks' report and recommendation ("R&R") stating that this Court should affirm the Administrative Law Judge's ("ALJ") April 16, 2003, determination that Plaintiff Melanie A. Lahr ("Plaintiff") is not eligible for disability benefits. On January 13, 2005, Plaintiff filed her Motion for Summary Judgment requesting reversal of the ALJ's decision. [Doc. No. 11.] On February 11, 2005, the Commissioner of Social Security ("Defendant") filed a Cross-Motion for Summary Judgment and Opposition to Plaintiff's Motion. [Doc. No. 13.] On February 28, 2005, Plaintiff filed a Reply to Defendant's Cross-Motion for Summary Judgment. [Doc. No. 15.] On June 23, 2005, the Magistrate Judge issued an R&R recommending that this Court deny Plaintiff's motion and grant Defendant's cross-motion. The Report required that objections be submitted to the Court by July 25, 2005. On July 25, 2005, this Court accepted Plaintiff's objections to the R&R as timely.


  Plaintiff alleges she is unable to work due to cerebral palsy and back pain and is therefore eligible for Social Security Income ("SSI"). (Admin. R. at 26-27.) Drs. Hanna and Moore examined and evaluated Plaintiff and Dr. Hartman evaluated Plaintiff based on her medical records. (Id. at 185-90, 191-99, 201-04.) While there were some discrepancies in Drs. Hanna and Moore's reports, both specifically concluded Plaintiff had no sitting restrictions.*fn1 (Id. at 189, 204.)

  Plaintiff asserts she underwent a neurological examination with Dr. James Grisolia. (Id. at 138.) Dr. Grisolia stated that in his opinion sedentary work would be difficult for Plaintiff and that "her reduced finer coordination would make it impossible for her to perform at a sustained business pace." (Id. at 211.)

  At the administrative hearing regarding Plaintiff's eligibility for disability benefits, a vocational expert, Dr. Robert Metcalf, testified that each of the doctors' reports, except for that of Dr. Grisolia, indicated Plaintiff would be able to complete sedentary work. (Id. at 43-48, 185-204.) Dr. Metcalf also stated that such sedentary work opportunities were available to plaintiff locally and nationally. (Id. at 43-49.) However, he concluded that "no work would be available [to Plaintiff]" if Dr. Grisolia's findings were accepted as true. (Id. at 48.)

  After weighing the evidence and Dr. Metcalf's testimony at the hearing, the ALJ found that Plaintiff was able to work in a sedentary capacity and that she was not "under a disability" as defined in the Social Security Act. (Id. at 14-20.) Therefore, the ALJ concluded that Plaintiff was not eligible for SSI. (Id. at 20.) Legal Standard

  The district court's duties in connection with a magistrate judge's R&R are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) (2005). When an objection is made, the Court must make a de novo determination as to those parts of the R&R to which the parties object. United States v. Radios, 447 U.S. 667, 676 (1980) (quoting 28 U.S.C. § 636(b)(1)).

  Sections 205(g) and 1631(c)(3) of the Social Security Act allow unsuccessful applicants to seek judicial review of the Commissioner's final agency decision. 42 U.S.C. §§ 405(g), 1383(c)(3) (2005). The reviewing Court may set aside a decision denying benefits "only if it is not supported by substantial evidence or if it is based on legal error." Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997). According to the Ninth Circuit, substantial evidence is what a "`reasonable person might accept as adequate to support [the ALJ's] conclusion,'" considering the record as a whole. Thomas v. Barnard, 278 F.3d 947, 954 (9th Cir. 2002) (quoting Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). It means "`more than a scintilla but less than a preponderance'" of the evidence. Id. (quoting Jamerson, 112 F.3d at 1066). The court considers the record as a whole, including the evidence that supports and the evidence that detracts from the ALJ's decision. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (citing Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)); Clem v. Sullivan, 894 F.2d 328, 330 (9th Cir. 1990). Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's decision must be upheld. See Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999).


  The R&R states the ALJ's decision is supported by substantial evidence, based on the application of correct legal standards, and should therefore be affirmed by this Court. Plaintiff objects to the R&R and argues (1) the ALJ failed to give specific and legitimate reasons for rejecting Dr. Grisolia's opinion, and (2) that the R&R's post hoc finding that Dr. Grisolia was not Mrs. Lahr's treating doctor was improper because the ALJ made no such finding. For the reasons set forth below, the Court ADOPTS the R&R in its entirety.

  I. The ALJ's Analysis was Sound

  A. There was Substantial Evidence in the Record to Support the ALJ's Decision

  Plaintiff contends the results of Dr. Moore's grip-strength tests differed from Dr. Hannah's results and were more consistent with Dr. Grisolia's opinion that Mrs. Lahr could not use her upper extremities on a sustained basis without pain and loss of grip strength. (Pls.' Objs. R&R at 2-3.) Therefore, Plaintiff argues that the ALJ lacked support when he ruled that the grip-strength findings of examining Drs. Hanna and Moore were consistent with an ability to perform sedentary work. (Id.) For the reasons stated below, this Court finds that even if there were discrepancies in Dr. Moore and Hanna's reports, the R&R correctly found the ALJ based his decision on substantial evidence.

  To qualify for disability benefits under the Social Security Act, an applicant must show that: (1) he or she suffers from a medically determinable impairment that can be expected to last for a continuous period of twelve months or more or result in death, and (2) the impairment renders the applicant incapable of performing the work that he or she previously performed or any other substantially gainful employment that exists in the national economy. See 42 U.S.C. § 423(d)(1)(A), (2)(A) (2005).

  The Ninth Circuit has indicated that when an ALJ is deciding on whether a person is eligible for disability benefits, an ALJ need not accept a treating physician's opinion which is "brief and conclusionary in form with little in the way of clinical findings to support [its] conclusion." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Young v. Heckler, 803 F.2d 963, 968 (9th Cir. 1986)).

  In the present case, the ALJ was justified in concluding that Dr. Grisolia's statement about Plaintiff's grip-strength was not supported by objective evidence. (Admin. R. at 17.) The only information provided by Dr. Grisolia on this matter was the blood-chemistry report and a letter dated February 3, 2003, the day before Plaintiff's administrative hearing, explaining that sedentary work would be difficult (for Plaintiff) because she "cannot use her upper extremities on a sustained basis without pain and loss of grip-strength." (Id. at 211-13.) Therefore, the ALJ did not need to accept Dr. Grisolia's opinion.

  Additionally, while Drs. Moore and Hanna's grip-strength test results differ, those specific tests were not the sole basis for the ALJ's finding that Plaintiff can perform sedentary work. (Id. at 16, 18.) The ALJ relied on Dr. Hanna, who performed a neurological examination of Mrs. Lahr at the request of the Social Security Administration ("SSA") and based her conclusions on other clinical tests. (Id. at 186-88.) Dr. Hanna's December 22, 2001, report found that Plaintiff's impairment-related physical limitations were as follows: (1) Mrs. Lahr could push, pull, lift, and carry fifty pounds occasionally and twenty-five pounds frequently; (2) she could walk and stand for six hours at a time; (3) she did not absolutely need an assistive device for walking; (4) there were not sitting restrictions; (5) she can bend, kneel, stoop, crawl, and crouch on a frequent basis; and (6) she was restricted from walking on uneven terrain, climbing ladders, and working with heights due to her balance abnormality and leg involvement. (Id. at 189.) Finally, Dr. Hanna's report found that Mrs. Lahr had minimal postural limitations, no restrictions on hearing and seeing, no restrictions on the use of her hands for "fine and gross manipulative movements," and that she was otherwise able to perform medium work. (Id.)

  The ALJ also relied on the reports of Dr. Moore, who also evaluated Plaintiff at the request of the SSA. (Id. at 201-04.) Dr. Moore's August 14, 2002, report was consistent with Dr. Hannah's report. (Compare id., with id. at 185-90.) Dr. Moore found (1) Mrs. Lahr could lift fifteen pounds frequently; (2) she was unrestricted in sitting and could bend and stoop occasionally; (3) she could not climb, balance, or work at heights; and (4) Plaintiff's standing and walking were limited to four hours a day in forty-five minute intervals. (Id. at 204.) He also found Plaintiff was able to perform simple and complex tasks. (See id.) (finding that Plaintiff "can perform unrestricted simple gripping and distal fine coordinated movements with the hands and fingers"). Additionally, the ALJ relied on nonexamining, nontreating doctors that reviewed Mrs. Lahr's records and agreed with the examining physicians' (Dr. Moore's and Dr. Hanna's) assessments of Plaintiff's condition.*fn2 (Admin R. at 191-99, 207-208.) The ALJ noted that the reviewing physicians "concluded that the longitudinal symptoms, clinical signs, and laboratory findings of record are not consistent with disabling limitations." (Id. at 16.) He ultimately gave greater weight to the reports of these state agency consultative physicians over the opinion of Dr. Grisolia because their conclusions bore "a greater nexus to comprehensive examination reports of symptoms, clinical signs, and laboratory findings." (Id. at 17-18.)

  These nonexamining physicians found Plaintiff capable of performing sedentary work limited to occasional postural activities. These physicians specifically found that she could lift "and/or" carry ten pounds frequently and twenty pounds occasionally, could stand "and/or" walk for at least two hours per eight-hour work day, and could sit for about six hours per eight-hour workday. (Id. at 16, 192-193, 198-199, 207-208.) These reports combined with the other specific and legitimate reasons listed above constitute substantial evidence supporting the ALJ's decision.

  B. The ALJ Properly Dismissed Dr. Grisolia's Opinion

  Contrary to Plaintiff's assertion, the ALJ provided specific and legitimate reasons not to "accord significant weight" to Dr. Grisolia's opinion. (Admin. R. at 17.) Dr. Grisolia stated in his letter dated February 3, 2003, the day before the administrative hearing, that "sedentary work will be difficult for [Plaintiff] to perform because she cannot use her upper extremities on a sustained basis without pain and loss of grip strength." (Id. at 211-13.) He concluded: "[h]er reduced finer coordination due to the [cerebral palsy] will make it impossible for her to perform at a sustained basis." Id. At the time of the hearing, Dr. Grisolia had seen plaintiff twice. (Id.)

  The ALJ found that Dr. Grisolia's opinion stating that Ms. Lahr could not perform sedentary work was "not supported by treating records, nor by the evidence of record considered as a whole." (Id. at 25, 211-23.) The ALJ noted that Dr. Grisolia's opinion stating that Plaintiff exhibited reduced fine coordination was "unsupported by any pertinent medical evidence with regard to the upper extremities, and, with regard to the lower extremities, . . . is not supported by clinical signs or objective laboratory findings consistent with restriction below sedentary work." (Id. at 17.) Finally, the ALJ also stated Dr. Grisolia had no objective laboratory findings or clinical signs on which to base his opinion that stated Mrs. Lahr exhibited symptoms of carpal tunnel syndrome. (Id.) In sum, these were all specific and legitimate reasons on which the ALJ based his decision and each were supported by substantial evidence in the record. Accordingly, the Court finds that the ALJ's decision to discount Dr. Grisolia's opinion was sound.

  II. The Magistrate Judge's Determination of Dr. Grisolia's Status as a Nontreating Physician Does Not Alter the Merits of His Decision

  Plaintiff argues that the Magistrate Judge (1) improperly accepted Defendant's post hoc arguments found in Defendant's Cross-Motion for Summary Judgment, and (2) improperly ruled that Dr. Grisolia was not Plaintiff's treating physician. (Pls.' Objs. R&R at 2-3.) Plaintiff contends that Defendant did not argue to the ALJ that Dr. Grisolia was not her "treating physician" and that the ALJ did not explicitly rule on the issue. For the reasons stated below, this Court finds that even if the Magistrate Judge improperly accepted Defendant's post hoc arguments on this issue, the R&R lent proper support to the Magistrate Judge's ultimate decisions to discount Dr. Grisolia's opinion and to affirm the ALJ's decision to deny benefits.

  The Supreme Court has stated:

"[a] simple but fundamental rule of administrative law . . . is . . . that a reviewing court in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such actions solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action."
Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 169 (1962). The Ninth Circuit has stated that a treating physician's opinion "is given deference because he is employed to cure and has a greater opportunity to know and observe the patient as an individual." Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). However, the Circuit Court has also noted that when a nontreating physician's opinion relies on independent objective clinical tests that differ from the findings of the treating physician, the nontreating physician's opinion is viewed as substantial evidence. Magallanes, 881 F.2d at 751, (citing Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985)).

  In the present case, the Magistrate Judge's R&R states that Plaintiff has not established that Dr. Grisolia is her treating physician.*fn3 (R&R at 21-24.) However, the report later states, "Regardless of whether Dr. Grisolia is considered a treating or examining physician, the ALJ may reject [Dr. Grisolia's] opinion by providing `specific and legitimate reasons' supported by substantial evidence in the record." (R&R at 25.) (citing Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996)). Next, the R&R states that the reports of multiple examining, but nontreating physicians serve as substantial evidence for this Court to affirm the ALJ's decision. (R&R at 25-31); see also supra (I)(B) of this Court's opinion (taking notice of such substantial evidence). In sum, while the Magistrate Judge might have improperly found that Dr. Grisolia was not Plaintiff's treating physician, it did not base its ultimate decision to affirm the ALJ's decision on those grounds. Thus, the Court ADOPTS the R&R as substantial evidence in the record existed to affirm the ALJ's decision to deny benefits. III. Conclusion and Order

  For the foregoing reasons, the Court (1) ADOPTS the R&R in its entirety, (2) DENIES Plaintiff's Motion for Summary Judgment, and (3) GRANTS Defendant's Cross-Motion for Summary Judgment.



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