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McWhorter v. Astrue

July 9, 2009

LISA MCWHORTER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Ralph Zarefsky United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff challenges the Commissioner of Social Security's decision terminating her disability benefits. Such decisions are governed by 42 U.S.C. § 423(f). As pertinent here, that section empowers the Commissioner to terminate benefits:

if substantial evidence demonstrates that --

(A) there has been any medical improvement in the individual's impairment or combination of impairments (other than medical improvement which is not related to the individual's ability to work), and

(B) the individual is now able to engage in substantial gainful activity . . .

In 2001, Plaintiff was found disabled as of December 2000, as a result of her multiple sclerosis. [AR 21, 79] In 2006, the Social Security Administration terminated her benefits. Plaintiff exhausted her administrative remedies before bringing this action.

When termination of benefits is involved, the Commissioner must compare the severity of the impairment currently with the severity at the most recent time that disability was determined. If there has been medical improvement, and the medical improvement is related to the ability to work, then the Commissioner proceeds with a disability analysis similar to the sequential analysis used when first evaluating a disability claim. 20 C.F.R. § 404.1594.

Here, the record is devoid of any substantial evidence of medical improvement. One would think that if there were medical improvement in multiple sclerosis, which is known to be an incurable, degenerative neurological disorder, that the record would be replete with medical evidence to that effect. Yet, no medical expert testified at the hearing. Although consultants were hired with respect to psychological byproducts of the multiple sclerosis, no medical consultative examination was performed with respect to the multiple sclerosis in terms of other impacts, including Plaintiff's physical abilities. No medical doctor gave his opinion that Plaintiff had medically improved.

In fact, Plaintiff's treating doctor stated just the reverse. On January 20, 2006, he wrote that Plaintiff "has Multiple Sclerosis, which is a chronic and life-long medical condition. She was last seen by me on 1/11/06. She was found to have poor balance and difficulty walking, indicative of an MS exacerbation. She is awaiting treatment for this, but clinically she has not improved. . . ." [AR 287]

The Administrative Law Judge should have respected this determination. As the Ninth Circuit has held:

Under the regulations, if a treating physician's medical opinion is supported by medically acceptable diagnostic techniques and is not inconsistent with other substantial evidence in the record, the treating physician's opinion is given controlling weight. 20 C.F.R. § 404.1527(d)(2); see also Social Security Ruling (SSR) 96-2p. [FN1] An ALJ may reject the uncontradicted medical opinion of a treating physician only for "clear and convincing" reasons supported by substantial evidence in the record. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (internal quotation marks and citation omitted).

Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001).

But rather than respecting the doctor's opinion, the Administrative Law Judge - who, of course, is not a doctor and is not authorized to make medical pronouncements, Manso-Pizarro v. Secretary of Health and Human Services, 76 F.3d 15, 17 (1st Cir. 1996) ("With a few exceptions (not relevant here), an ALJ, as a lay person, is not qualified to interpret raw data in a medical record") - rejected this determination by the treating physician. He had this to say about the treating physician's opinion:

[T]he doctor offered no laboratory or clinical findings to support her conclusory statement and the medical opinions and notes throughout the record weigh heavily against the claimant's allegations of disability. The allegations of symptom levels that preclude all types of work are not consistent with the evidence as a whole and are not credible. Moreover, Dr. Thai asserted in June 2005 that "[S]he is doing very well clinically" (Exhibit 1F, page ...


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