United States District Court, S.D. California
October 3, 2005.
MELANIE A. LAHR, Plaintiff,
JO ANNE B. BARNHART, Defendant.
The opinion of the court was delivered by: NAPOLEON JONES, District Judge
(1) ADOPTING MAGISTRATE JUDGE BROOKS' REPORT AND RECOMMENDATION
[Doc. No. 17];
(2) DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [DOC. NO.
(3) GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT [DOC.
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
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
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.
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
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
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
IT IS SO ORDERED.
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