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Voong v. Astrue

July 23, 2009

MUI SI VOONG, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gregory G. Hollows U.S. Magistrate Judge

ORDER

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"). For the reasons that follow, plaintiff's Motion for Summary Judgment is GRANTED in part, the Commissioner's Cross Motion for Summary Judgment is DENIED, and the Clerk is directed to enter judgment for the plaintiff.

BACKGROUND

Plaintiff was born on September 2, 1949. (Tr. at 161). She applied for disability benefits on April 13, 2000. (Tr. at 161). Plaintiff alleged she was unable to work due to chronic arthritis, dizziness, sleeplessness, lung problems, mental disorder and a poor memory. (Tr. at 167.)

In a decision dated October 3, 2001, ALJ Mark C. Ramsey determined plaintiff was not disabled. On September 18, 2006, Magistrate Judge John F. Moulds reversed the ALJ's decision and remanded for a new hearing. (Tr. at 353-361.) Judge Moulds found that remand was required because the ALJ's finding that plaintiff was capable of doing simple, medium work was not supported by substantial evidence. (Tr. at 356.) In its remand order directing the ALJ to conduct a new hearing in compliance with the magistrate's order, the Appeals Council noted that plaintiff had subsequently been found disabled as of November 1, 2002. (Tr. at 351). Therefore, at issue on remand was whether plaintiff was disabled from April 13, 2000, through October 31, 2002. (Tr. at 325, 351.)

On August 9, 2007, another hearing was held before ALJ Ramsey. (Tr. at 376-410). On October 19, 2007, the ALJ issued a decision finding that plaintiff was not disabled during the relevant time period. (Tr. at 325-335.) The Appeals Council denied plaintiff's request for review. (Tr. at 317-319.)

On August 9, 2007, the ALJ made the following findings:*fn1

1. The claimant has not engaged in substantial gainful activity since April 13, 2000, the application date (20 CFR 416.920(b) and 416.971 et seq.).

2. The claimant has the following severe impairments: a depressive disorder and musculoskeletal back pain. (20 CFR 416.920(c)).

3. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926.)

4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work with an additional restriction that she is limited to unskilled work.

5. The claimant has no past relevant work (20 CFR 416.965).

6. The claimant was born on September 2, 1949 and was age 50 on the date the application was filed (20 CFR 416.963). She is currently age 57.

7. The claimant is not able to communicate in English, and is considered in the same way as an individual who is illiterate in English.

8. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 416.968).

9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.960(c) and 416.966).

10. The claimant has not been under a disability, as defined in the Social Security Act, from April 13, 2000, through October 31, 2002 (20 CFR 416.920(g)).

(Tr. at 325-335.)

ISSUE PRESENTED

Plaintiff has raised the following issues: A) whether the ALJ failed to consider the opinion of the examining psychologist; B) whether the ALJ failed to credit plaintiff's testimony without a legitimate reason for doing so; C) whether the ALJ failed to properly assess plaintiff's residual functional capacity (RFC), failed to pose a legally adequate hypothetical to the vocational expert and, as a result, found plaintiff capable of performing a significant number of medium jobs.

LEGAL STANDARDS

The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). ANALYSIS

A. Whether the ALJ Failed to Consider the Opinion of the Examining Psychologist

Plaintiff contends that the ALJ improperly rejected the opinion of the examining psychologist, Dr. Finkel. Dr. Finkel found that plaintiff was depressed secondary to chronic pain, and that her ability to work over an eight-hour day and to attend to a regular work schedule was moderately to markedly impaired due to chronic pain and depression. In this claim, petitioner challenges the ALJ's finding that there was not sufficient objective evidence supporting Dr. Finkel's opinion that plaintiff suffered chronic pain that would have caused her to suffer the level of depression he diagnosed. Plaintiff also argues that the ALJ should have credited Dr. Finkel's opinion because her pain, and in particular headaches, was a cultural manifestation of her depression.

The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).*fn2 Ordinarily, more weight is given to the opinion of a treating professional, who has a greater opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996).

To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons. Lester , 81 F.3d at 831. In contrast, a contradicted opinion of a treating or examining professional may be rejected for "specific and legitimate" reasons. Lester, 81 F.3d at 830. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by a supported examining professional's opinion (supported by different independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The regulations require the ALJ to weigh the contradicted treating physician opinion, Edlund v. Massanari, 253 F.3d 1152 (9th Cir. 2001),*fn3 except that the ALJ in any event need not give it any weight if it is conclusory and supported by minimal clinical findings. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir.1999) (treating physician's conclusory, minimally supported opinion rejected); see also Magallanes, 881 F.2d at 751. The opinion of a non-examining professional, without other evidence, is insufficient to reject the opinion of a treating or examining professional. Lester, 81 F.3d at 831.

In his report, Dr. Finkel, who evaluated plaintiff in May 2000, stated that plaintiff told him that she was wounded during the Vietnamese war in 1971. (Tr. at 216.) She showed him a scar around her left temple area which she said was the shrapnel wound which resulted in injuries to her back and head. (Tr. at 216.) She reported a throbbing sensation on the top of her head which also made her dizzy. (Tr. at 216.) She told him that the headaches occur four or five times per day, lasting about three hours. (Tr. at 216.) They were worse during cold weather. (Tr. at 216.)

Plaintiff told Dr. Finkel that she had arthritis from her right shoulder to her hand. (Tr. at 216.) She also reported suffering from back pain for many years. (Tr. at 216.) Plaintiff told Dr. Finkel that she could stand for up to 30 minutes. (Tr. at 216.) Plaintiff told Dr. Finkel that she suffered depression due to pain. (Tr. at 218.) She reported that she suffered more or less chronic pain due to back aches, headaches and arthritis. (TR. At 218.)

Dr. Finkel concluded that plaintiff was depressed secondary to chronic pain. (Tr. at 219). He found that plaintiff's ability to work over an eight-hour day and to attend to a regular work schedule was moderately to markedly ...


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