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Willis v. Astrue

February 26, 2009

STEVEN E. WILLIS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

(Social Security Case)

This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified Administrative Record ("AR").

Plaintiff raises the following issues:

1. Whether the Administrative Law Judge ("ALJ") properly considered the treating physician's opinion regarding disability;

2. Whether the ALJ made proper credibility findings;

3. Whether the ALJ properly considered Plaintiff's residual functional capacity ("RFC"); and

4. Whether the ALJ posed a complete hypothetical question to the vocational expert ("VE").

This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that the decision of the Commissioner must be affirmed.

I. THE ALJ DID NOT ERR IN HIS EVALUATION OF THE OPINION OF PLAINTIFF'S TREATING PHYSICIAN

On February 5, 2008, Dr. Juan Velasquez, Plaintiff's treating physician, wrote a letter "To Whom It May Concern" in which he opined that Plaintiff is unable to do any type of work at this time due to diagnosis of physical and mental impairments. (AR 217.)*fn1

Plaintiff contends that the ALJ improperly rejected Dr. Velasquez's opinion as to total disability, and asserts that Dr. Velasquez's findings are supported by the medical record. (See JS at 4, citing a medical report of a treating physician at the San Bernardino County Transitional Assistance Department, at AR 187.) Further, Plaintiff argues that the ALJ improperly ignored Dr. Velasquez's statement that Plaintiff has been "very reliable and compliant" with the doctor's recommendations, instead relying upon a December 28, 2007 medical report from McKee Clinic, a treating source, which the ALJ interpreted as supporting a finding that Plaintiff had not been compliant with prescribed medication. (JS at 5, citing AR 16.)

Plaintiff ignores a basic tenet of Social Security law, that the Social Security Administration ("SSA") is not bound by ultimate opinions of disability voiced by medical experts. This is plainly laid out in applicable regulations and case law. (See 20 C.F.R. §§404.1527(e)(1), 416.927(e)(1) (2008), Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985)).

Moreover, Plaintiff is wrong in asserting that the ALJ rejected Dr. Velasquez's opinion solely because of Plaintiff's lack of compliance with medication. The ALJ's decision sets forth a number of reasons based on evidence in the record. These include a summary of medical evidence which contradicts Dr. Velasquez's broad conclusion that Plaintiff is "unable to stand, sit or walk for extended periods of time." (AR 217.) Cited in the decision was the ALJ's determination that there was a lack of clinical or objective evidence to support Dr. Velasquez's conclusions. Plaintiff fails to point to any such diagnostic information upon which Dr. Velasquez may have relied. It is basic Social Security law that an ALJ need not accept conclusory opinions which are unsupported by clinical findings, or inadequately supported. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Thus, Plaintiff has no answer for the ALJ's statement that there is a lack of evidence of radiological studies which show any musculoskeletal disorder. (See AR at 17.) Neither does Plaintiff point to medical evidence which would contradict the ALJ's conclusion that he has displayed no documented persistent signs of chronic neurological deficits or weakness. With regard to non-compliance with medications, Plaintiff does not address the ALJ's observation that he failed to get a knee x-ray which his physician had recommended the year before. (See AR at 17.) Plaintiff had ...


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