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Merrick v. Astrue

May 14, 2009


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


Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's applications for disability insurance benefits and supplemental security income ("SSI") 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]. The Administrative Law Judge ("ALJ") denied benefits in an April 2007 written hearing decision that constitutes the Commissioner's final decision. [Administrative Record ("AR") 16-23; JS 2]. The ALJ found that plaintiff had severe impairments consisting of L5-S1 disc degeneration with shallow spondylotic ridge, no crossing or exiting nerve root compression and mild facet arthrosis; mild central canal narrowing at L4-L5 secondary to diffuse annular bulge; and mild diffuse annular bulge at L3-L4 with no crossing or existing nerve root compression and normal facet joints. [AR 18; JS 2]. The ALJ found that plaintiff retained the residual functional capacity ("RFC") to perform medium work, but has "difficulty with the right elbow with repetitive motions." [AR 19]. The ALJ denied benefits on the ground that plaintiff's RFC does not preclude performance of her past relevant work as a teacher's aide and mail carrier. [AR22; JS 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)).


Medical opinion evidence Plaintiff contends that the ALJ erroneously rejected the opinion of plaintiff's treating physicians, Dr. Sobol and Dr. Paveloff, in favor of the opinion of a consultative physician, Dr. Boeck. [See JS 8-27].

In general, "[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). A treating physician's opinion is entitled to greater weight than those of examining or non-examining physicians because "treating physicians are employed to cure and thus have a greater opportunity to know and observe the patient as an individual. . . . ." Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001) (quoting Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996) and citing Social Security Ruling ("SSR") 96-2p, 1996 WL 374188); see 20 C.F.R. §§ 404.1502, 404.1527(d)(2), 416.902, 416.927(d)(2). An examining physician's opinion, in turn, generally is afforded more weight than a non-examining physician's opinion. Orn, 495 F.3d at 631.

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, 253 F.3d at 1157; Social Security Ruling 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).

Plaintiff was treated by Dr. Sobol, an orthopedist, and his colleague, Dr. Paveloff, a specialist in physical medicine and rehabilitation, from June 2004 through February 21, 2007, the date of the hearing. The record includes treatment reports covering the period from June 2004 through November 2006. [See AR 146-230, 267-316, 321, 328-329].

Plaintiff alleges that her disability began in May 2005. She initially sought treatment from Dr. Sobol in June 2004 for neck pain radiating into the left upper extremity, pain in the middle and low back, bilateral knee pain and swelling, and occasional buckling of her knee. [AR 182-190]. She reported that she had injured her back and knees at work in two separate falls sustained in May and June 2003.[AR 182]. She had undergone physical therapy and had returned to work with restrictions, but she told Dr. Sobol that her symptoms were getting worse, prompting her to seek additional treatment.

Dr. Sobol conducted an examination and ordered x-rays and electrodiagnostic studies. He also requested prior x-rays and MRI films for review. [AR 187]. Dr. Sobol's initial diagnoses were cervical/trapezial musculoligamentous sprain/strain with attendant left upper extremity radiculitis, thoracolumbar musculoligamentous sprain/strain, and bilateral knee contusion with patellofemoral arthralgia. [AR 187]. Dr. Sobol's treatment plan included aquatic therapy, acupuncture treatment, analgesic and anti-inflammatory medication, a cervical pillow, and a home electrical muscle stimulation unit for pain management. [AR 187]. He later added a course of cervical traction therapy, a home cervical traction device, and, after obtaining MRI scans of the lumbar and cervical spine, a series of cervical epidural steroid injections, which were beneficial. [AR 272]. Dr. Sobol concluded that as of June 11, 2004, plaintiff was temporarily totally disabled. [AR 188].

In July, August, and September 2004, Dr. Sobol completed or approved State of California Workers' Compensation reports entitled "Primary Treating Physician's Progress Report" detailing plaintiff's subjective complaints, objective findings, diagnoses, and treatment plan. [AR 210-212]. He indicated that she was to remain off work until September 20, 2004, when he stated that he was capable of returning to modified work consisting of four hours a day, five days a week, with no heavy lifting, forceful pushing or pulling, climbing, or kneeling. [AR 210]. Plaintiff attempted a return to work. [AR 208-209]. In October 2004, Dr. Sobol recommended that plaintiff continue on a four hour per day/five day a week schedule with no forceful pushing or pulling, climbing, or kneeling. These restrictions were to continue until October 18, 2004, at which time plaintiff could begin a trial period of working eight hours a day with the same restrictions. [AR 209-210]. On October 25, 2004, plaintiff reported that her symptoms had worsened since returning to work and that her pain medications were not helping. [AR 208; see AR 327]. Dr. Sobol advised reducing her daily work schedule back to four hours with the same restrictions. Beginning in November 2004, Dr. Sobol took plaintiff off work completely until April 11, 2005, when he ...

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