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McAfee v. Astrue

January 12, 2009

JOSEPH C. MCAFEE PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge

MEMORANDUM OF DECISION

Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for supplemental security income benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

The parties are familiar with the procedural facts, which are summarized in the Joint Stipulation. [See JS 2].In a written hearing decision that constitutes the final decision of the Commissioner, an Administrative Law Judge ("ALJ") found that plaintiff had severe impairments consisting of neck and back pain, diabetes mellitus, sleep apnea, depressive disorder, and somatoform disorder. [Administrative Record ("AR") 18-19; JS 2]. The ALJ denied benefits on the ground that plaintiff retained the residual functional capacity to perform work available in significant numbers in the national economy.[AR 11-17; JS 1-2].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).

Discussion

Medical opinion evidence

Plaintiff contends that the ALJ failed properly to consider the opinions of Dr. Sadler, his workers' compensation treating orthopedist, Dr. Bagner, the Commissioner's consultative psychiatric examiner, and Mark Erickson, M.S., MFT, plaintiff's treating therapist at San Bernardino County Department of Mental Health ("County Mental Health"). [JS 3-14].

Although not binding on the Commissioner with respect to the existence of an impairment or the ultimate issue of disability, "[t]he opinions of treating doctors should be given more weight than the opinions of doctors who do not treat the claimant." Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007)(citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)); see Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). When a treating physician's medical opinion as to the nature and severity of an individual's impairment is well-supported and not inconsistent with other substantial evidence in the record, that opinion must be given controlling weight. Orn, 495 F.3d at 631-632;Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001); Social Security Ruling ("SSR") 96-2p, 1996 WL 374188 SSR 96-2p, 1996 WL 374188, at *1-*2. The ALJ must provide clear and convincing reasons, supported by substantial evidence in the record, for rejecting an uncontroverted treating source opinion. If contradicted by that of another doctor, a treating or examining source opinion may be rejected for specific and legitimate reasons that are based on substantial evidence in the record. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Tonapetyan, 242 F.3d at 1148-1149; Lester v. Chater, 81 F.3d 821, 830-831 (9th Cir. 1995).

Dr. Sadler

Dr. Sadler treated plaintiff for back, neck, and bilateral hand pain from May 1999 until December 2000, a period of sixteen months. [See AR 263-355]. Dr. Sadler prepared a permanent and stationary report on April 4, 2000 describing in detail his findings of work-related functional restrictions pertaining to plaintiff's neck, low back, and upper extremities, as well as the objective medical evidence and subjective symptoms supporting his assessment. Dr. Sadler reiterated those restrictions in a follow-up permanent and stationary examination report in December 2000. [AR 263-295, 312-340].

The ALJ did not describe Dr. Sadler's detailed findings beyond remarking that Dr. Sadler "opined Claimant was precluded from very heavy work with some additional restrictions." [AR 13]. The ALJ did not expressly state that he was rejecting Dr. Sadler's opinion, nor did he articulate any specific reasons for doing so. Instead, the ALJ said that he was adopting the opinion of the non-examining medical expert, Dr. Nafoosi, who opined that plaintiff could sit for eight hours, or stand and walk for six hours, during an eight-hour day, provided that he could change positions each hour from one to three minutes, only occasionally had to balance, stoop, kneel, crouch, crawl, and squat, and did not have to hold his head in a fixed position for more than an hour before being allowed to change positions briefly. [AR 577-578]. The ALJ attempted to justify his reliance on Dr. Nafoosi's opinion by describing it as "the most restrictive physical medical source opinion of record," but even without analyzing the implications of Dr. Sadler's workers' compensation disability ratings, it seems apparent that Dr. Sadler imposed functional restrictions that Dr. Nafoosi did not, including a prohibition against (1) repetitive neck movements, (2) "very prolonged lower extremity weight bearing," (3) "very prolonged sitting," (4) "very repetitive,""very prolonged," or "very forceful" gripping or grasping, and (5) "repetitive" or "prolonged" keyboarding. [AR 290-291].

Workers' compensation disability ratings are not controlling in disability cases decided under the Social Security Act, and the terms of art used in the California workers' compensation guidelines are not equivalent to Social Security disability terminology. See Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996); Desrosiers v. Sec'y of Health & Human Serv., 846 F.2d 573, 576 (9th Cir. 1988); 20 C.F.R. §§ 404.1504, 416.904. Nonetheless, the ALJ may not ignore a doctor's medical opinion merely because it was issued for use in a workers' compensation case. See Lester, 81 F.3d at 832 (holding that the ALJ erred in rejecting a physician's reports because they "were clearly obtained by the claimant's attorney for the purpose of litigation," and stating that "[t]he purpose for which medical reports are obtained does not provide a legitimate basis for rejecting them"); Coria v. Heckler, 750 F.2d 245, 247-248 (3d Cir.1984) (holding that ALJ erred in failing to consider medical reports submitted in state workers' compensation proceeding). Rather, the ALJ must consider ...


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