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Pak v. Astrue

July 14, 2009

JOHN PAK, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION; ORDER

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

I. DISPUTED ISSUES

As reflected in the Joint Stipulation, the disputed issues which Plaintiff is raising as the grounds for reversal and/or remand are as follows:

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

2. Whether the ALJ properly considered the side effects of Plaintiff's medications;*fn3

3. Whether the ALJ properly considered the treating clinician's opinion;

4. Whether the ALJ properly considered the actual physical and mental demands of Plaintiff's past relevant work;

5. Whether the ALJ properly considered the lay witness testimony; and

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

(JS at 2.)

II. STANDARD OF REVIEW

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 (citation omitted). 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, 1452 (9th Cir. 1984).

III. DISCUSSION

A. The ALJ Properly Considered the Opinions of Plaintiff's Treating Psychiatrist

Plaintiff contends that the ALJ erroneously rejected the opinion of his treating psychiatrist, Dr. Marianna Soor-Melka. (JS at 3-5.) Specifically, Plaintiff asserts that the ALJ failed to provide specific or legitimate reasons supported by substantial evidence to reject Dr. Soor-Melka's opinion regarding Plaintiff's "moderate and marked limitations." (Id. at 5.) The Court disagrees.

It is well-established in the Ninth Circuit 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 observe the patient as an individual. McAllister v. Sullivan, 888 F.2d 599, 602 (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).

However, the Ninth Circuit also has held that "[t]he ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings." Thomas, 278 F.3d at 957; see also Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). A treating or examining physician's opinion based on the plaintiff's own complaints may be disregarded if the plaintiff's complaints have been properly discounted. Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999); see also Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997); Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). Additionally, "[w]here the opinion of the claimant's treating physician is contradicted, and the opinion of a nontreating source is based on independent clinical findings that differ from those of the treating physician, the opinion of the nontreating source may itself be substantial evidence; it is then solely the province of the ALJ to resolve the conflict." Andrews, 53 F.3d at 1041; Magallanes, 881 F.2d at 751; Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985).

Here, Dr. Soor-Melka's progress notes from August 2005 though December 2006 indicate that Plaintiff's affect was often blunted, but for the most part, he seemed stable, denied hearing voices, or otherwise indicated he was fine.

(Administrative Record ("AR") at 153-70.) Three separate progress notes also specifically state that Plaintiff was stable on medications. (Id. at 163, 166-67.) Dr. Soor-Melka's treatment plan consisted of prescribing mainly Zydis and Zyprexa with monthly follow-up visits. (Id. at 153-70, 175-77.) Additionally, Dr. Soor-Melka completed two "Work Capacity Evaluation[s] (Mental)" on October 10, 2006, and September 20, 2007. (Id. at 220-23.) In the October 2006 evaluation, Dr. Soor-Melka indicated that Plaintiff had marked limitations in the following areas: (1) the ability to carry out very short and simple instructions; (2) the ability to perform activities within a schedule, maintain regular attendance, and be punctual with customary tolerance; (3) the ability to sustain an ordinary routine without special supervision; (4) ability to work in coordination with or in proximity to others without being distracted by them; (5) the ability to make simple work-related decisions; (6) the ability to interact appropriately with the general public; (7) the ability to get along with co-workers and respond appropriately to criticism from supervisors; and (8) the ability to set realistic goals or make plans independently of others. (Id. at 220-21.) Dr. Soor-Melka opined that she anticipated Plaintiff would be absent from work three days or more per month due to his impairments or treatment. (Id. at 221.)

In the September 2007 evaluation, Dr. Soor-Melka indicated that Plaintiff had marked limitations in the following areas: (1) the ability to remember locations and work-like procedures; (2) the ability to perform activities within a schedule, maintain regular attendance, and be punctual with customary tolerance; (3) the ability to sustain an ordinary routine without special supervision; (4) ability to work in coordination with or in proximity to others without being distracted by them; (5) the ability to interact appropriately with the general public; (6) the ability to accept instructions and respond appropriately to criticism from supervisors; (7) the ability to get along with co-workers and respond appropriately to criticism from supervisors; (8) the ability to respond appropriately to changes in the work setting; and (9) the ability to set realistic goals or make plans independently of others. (Id. at 222-23.) Again, Dr. SoorMelka opined that she anticipated Plaintiff would be absent from work three days or more per month due to his impairments or treatment. (Id. at 223.)

Dr. Soor-Melka's progress notes and conservative treatment plan do not support her findings that Plaintiff was markedly limited in the above-stated areas. (Id. at 153-70, 175-77, 220-23.) The evaluations also consisted of nineteen checklist questions, with no room for analysis or explanation as to Plaintiff's functional limitations. (Id. at 220-23.) As a result, Dr. Soor-Melks'a opinion is not entitled to great deference. Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (ALJ properly rejected doctor's opinion because ...


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