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Ly v. Astrue

May 11, 2009


The opinion of the court was delivered by: Honorable Oswald Parada United States Magistrate Judge


The Court*fn1 now rules as follows with respect to the single disputed issue listed in the Joint Stipulation ("JS").*fn2


As reflected in the Joint Stipulation, Plaintiff raises the following ground for reversal and/or remand: whether the Commissioner properly considered Plaintiff's subsequent medical evidence from treating physician, Dr. Pang, as submitted to the Appeals Council for review. (JS at 6.)


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed. 2d 842 (1971); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984).


It is well-established that a treating physician's opinions are entitled to special weight, because a treating physician is employed to cure and has a greater opportunity to know and to observe the patient as an individual. McAllister v. Sullivan, 880 F.2d 1086, 1089 (9th Cir. 1989). "The treating physician's opinion is not, however, necessarily conclusive as to either a physical condition or the ultimate issue of disability." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The weight given a treating physician's opinion depends on whether it is supported by sufficient medical data and is consistent with other evidence in the record. See 20 C.F.R. § 404.1527(d)(2). If the treating physician's opinion is uncontroverted by another doctor, it may be rejected only for "clear and convincing" reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). If the treating physician's opinion is controverted, it may be rejected only if the ALJ makes findings setting forth specific and legitimate reasons that are based on the substantial evidence of record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Magallanes, 881 F.2d at 751; Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). Contrary opinions of examining and non-examining physicians "serve as additional specific and legitimate reasons" for rejecting the opinions of treating and examining physicians. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); see also Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995) (holding that the self-contradictory nature of treating physician opinion was a "clear and convincing" reason for rejection).

In his decision, the ALJ noted that although there was objective evidence to support Plaintiff's amputation as a result of an automobile accident, hypertension, and chronic headaches, there was no objective evidence to support Plaintiff's allegations of total disability. (AR at 25.) The ALJ noted that the medical records submitted by Plaintiff's treating physicians, Drs. Pang, Lin, Nguyen, and Tam, provided "no statements of imposed limitation," and only briefly described Plaintiff's complaints, prescription medications, and recommendations.*fn3 (Id.)

The ALJ, therefore, adopted the opinions of the medical experts, Dr. Thomas Maxwell for Plaintiff's physical conditions and Dr. Glenn Griffin for her mental conditions, finding that there was no contrary opinion evidence but for that of treating physician, Dr. Nguyen, which the ALJ rejected for specific and legitimate reasons. (Id. at 24.) That rejection is not at issue here.

The ALJ found that Plaintiff suffered from the medically determinable impairments of a right arm amputation above the elbow, chronic headaches, hypertension, and an adjustment disorder with depressed mood (id. at 21), but that these impairments did not meet or medically equal a listed impairment (id. at 23.) The ALJ also found that Plaintiff retained the residual functional capacity to perform a range of light work that would:

[L]imit her to lift and carry twenty pounds occasionally and ten pounds frequently; stand and/or walk for six hours of an eight-hour workday; sit for six hours of an eight-hour workday; with occasional climbing of ramps and stairs, balancing, kneeling, stooping, and crouching; with a limit of climbing ladders, ropes, or scaffolds and further limit from work at height or around dangerous machines; no work requiring Plaintiff to reach, handle, finger, or feel with the right upper extremity; limit from constant use of non-dominant left; and limit to simple repetitive tasks. (Id. at 23-24.) The ALJ determined that although Plaintiff was unable to perform any past relevant work, there were jobs that exist in significant numbers in the national economy that Plaintiff could perform despite the loss of her right arm and other limitations. (Id. at 26-27.)

After the ALJ's decision, Plaintiff submitted new evidence to the Appeals Council including a June 6, 2007, Physical Residual Functional Capacity questionnaire from Plaintiff's treating physician, Dr. Pang. (Id. at 4, 8, 235-39.) In this questionnaire, Dr. Pang opined that Plaintiff suffered from frequent phantom pain, could sit or stand for thirty minutes continuously, sit for three hours and stand or walk for two hours during an eight-hour work day, and must take walking breaks every thirty minutes, lasting fifteen minutes at a time. Additionally, he stated that Plaintiff would need to take frequent, unscheduled one-hour breaks during an eight hour work day. (Id. at 235-38.) He stated she could never lift any weight, and had significant limitations in reaching, handling, or fingering. (Id. at 238.) In response to the question asking him to describe any other limitations that would affect Plaintiff's ability to work at a regular job on a sustained basis, he responded: "Pt has on[ly] one arm[.] What can you expect her to do?" (Id. at 239.) He also spontaneously noted at the end of the form: "Pt has only one arm -you can look at her and do not need any one to fill out this form. She is completely disable[d] with only one arm." (Id.) He indicated that these symptoms and disabling limitations had existed from the day of the car accident. (Id.)

Also submitted to the Appeals Council were three pages of treatment notes from Dr. Pang. (Id. at 232-34.) One page appears to be a duplicate of a September 7, 2005, note previously submitted to the ALJ, although it now contains additional notations regarding Plaintiff's arm amputation and the "foreign body" she felt under the skin of her forehead. (Compare id. at 207 with id. at 234.) The second page indicates that Plaintiff also saw Dr. Pang on September 18, 2005, for hypertension, and again referenced her history of spontaneous abortion, and on November 11, 2006, for headache, hypertension, glass in her scalp, and "PUD," possibly indicating peptic ...

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