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Montes v. Astrue


November 2, 2009


The opinion of the court was delivered by: Carla M. Woehrle United States Magistrate Judge


The parties have consented, under 28 U.S.C. § 636(c), to the jurisdiction of the undersigned magistrate judge. Plaintiff seeks review of the denial of disability benefits. The court finds that judgment should be granted in favor of defendant, affirming the Commissioner's decision.


Plaintiff Vilma Montes was born on July 23, 1945, and was sixty-one years old at the time of her administrative hearing. [Administrative Record ("AR") 32, 766.] She has a college education and past relevant work experience as a credit counselor and general clerk [AR 27.] Plaintiff alleges disability on the basis of cancer, migraines, allergies, hearing loss, back pain, and loss of energy. [AR 22.]


Plaintiff's complaint was lodged on October 9, 2008, and filed on October 16, 2008. On April 22, 2009, defendant filed an answer and plaintiff's Administrative Record ("AR"). On July 22, 2009, the parties filed their Joint Stipulation ("JS") identifying matters not in dispute, issues in dispute, the positions of the parties, and the relief sought by each party. This matter has been taken under submission without oral argument.


Plaintiff applied for a period of disability and disability insurance benefits ("DIB") on March 24, 2005, alleging disability since September 1, 2002. [AR 22.] After the application was denied initially and on reconsideration, plaintiff requested an administrative hearing, which was held on September 18, 2006, before Administrative Law Judge ("ALJ") Sally Reason. [AR 766.] Plaintiff appeared with counsel, and testimony was taken from Plaintiff and vocational expert Gregory Jones. [AR 767.] The ALJ denied benefits in a decision dated December 21, 2006. [AR 28.] When the Appeals Council denied review on August 15, 2008, the ALJ's decision became the Commissioner's final decision. [AR 5.]


Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The Commissioner's (or ALJ's) findings and decision should be upheld if they are free of legal error and supported by substantial evidence. However, if the court determines that a finding is based on legal error or is not supported by substantial evidence in the record, the court may reject the finding and set aside the decision to deny benefits. See Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). "Substantial evidence is more than a scintilla, but less than a preponderance." Reddick, 157 F.3d at 720. It is "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Id. To determine whether substantial evidence supports a finding, a court must review the administrative record as a whole, "weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Id. "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for that of the Commissioner. Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162.



To be eligible for disability benefits a claimant must demonstrate a medically determinable impairment which prevents the claimant from engaging in substantial gainful activity and which is expected to result in death or to last for a continuous period of at least twelve months. Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 721; 42 U.S.C. § 423(d)(1)(A).

Disability claims are evaluated using a five-step test:

Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.

Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.

Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four.

Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.

Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.

Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S.Ct. 2287, 96 L.Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 C.F.R. § 404.1520, § 416.920. If a claimant is found "disabled" or "not disabled" at any step, there is no need to complete further steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520.

Claimants have the burden of proof at steps one through four, subject to the presumption that Social Security hearings are non-adversarial, and to the Commissioner's affirmative duty to assist claimants in fully developing the record even if they are represented by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 1288. If this burden is met, a prima facie case of disability is made, and the burden shifts to the Commissioner (at step five) to prove that, considering residual functional capacity ("RFC")*fn1, age, education, and work experience, a claimant can perform other work which is available in significant numbers. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920.


Here, the ALJ found that plaintiff had not engaged in substantial gainful activity since her alleged disability onset date (step one); that plaintiff had "severe" impairments, namely breast cancer in remission, degenerative disc disease of the lumbar spine, and migraine headaches (step two); and that plaintiff did not have an impairment or combination of impairments that met or equaled a "listing" (step three). [AR 27.] Plaintiff was found to have an RFC enabling her to lift twenty pounds occasionally, lift and carry up to ten pounds frequently, walk and stand for six hours in an eight-hour workday, and avoid concentrated exposure to noise. [AR 28.] The vocational expert testified that this RFC would enable Plaintiff to return to her past relevant work as a credit counselor or general clerk (step four). [Id.] Accordingly, plaintiff was found not "disabled" as defined by the Social Security Act. [Id.]


The parties' Joint Stipulation sets out the following disputed issues:

1. Whether the ALJ properly considered the opinion of the state agency physician regarding Plaintiff's limitations in reaching;

2. Whether the ALJ properly considered Plaintiff's medication side effects;

3. Whether the ALJ properly considered the opinion of an examining physician; and

4. Whether the ALJ posed a complete hypothetical question to the vocational expert.

[JS 2-3.]



In July 2005, Plaintiff had an internal medicine consultation performed by Dr. Seung Ha Lim. [AR 274-78.] Plaintiff complained of a history of breast cancer, headaches, hypertension, back pain, right arm pain and a hearing deficit. [AR 274.] Dr. Lim reviewed Plaintiff's medical history, reviewed submitted medical records, and administered a physical examination including formal testing and observations. [AR 274-76.] Dr. Lim noted that Plaintiff's breast cancer was in remission and found, among other things, that her hearing was grossly normal bilaterally, that an MRI of her head taken in April 2005 was normal, that she had an optimal blood pressure reading without signs of congestive heart failure, that she experienced pain while moving her back based on "paravertebral tenderness and decreased range of motion of the back without any signs of radiculopathy," and that she had a normal range of motion in both of her upper extremities. [AR 276-78.] Based on these examination findings, Dr. Lim recommended that Plaintiff be limited from a functional standpoint to light work: sitting, standing and/or walking about six hours in an eight-hour workday with appropriate breaks, lifting and/or carrying twenty pounds occasionally and ten pounds frequently, unlimited pushing/pulling, and occasional climbing and stooping. [AR 278.]

One month later, in August 2005, Dr. E. Fonte, a state agency review physician, completed a Physical Residual Functional Capacity Assessment based on review of the record, including the examination record of Dr. Lim. [AR 280-87.] Dr. Fonte's functional assessment was the same as Dr. Lim's with the exception that Dr. Fonte stated that Plaintiff should be limited from reaching in all directions, including no reaching above shoulder level. [AR 283.] Dr. Fonte further noted that his opinion regarding Plaintiff's limitations and restrictions was not significantly different from those in the file and therefore, offered no explanation for the departure. [AR 286.]

The Commissioner's Finding

In the administrative decision, the ALJ noted the evaluations of both Dr. Lim and Dr. Fonte, including the clinical findings recorded by Dr. Lim. [AR 25.] On the basis of this record, the ALJ made an RFC finding that the ALJ described as "roughly consistent" with the assessments of Dr. Lim and Dr. Fonte. [AR 27.] The ALJ found that Plaintiff had a functional capacity equivalent to light work, as noted above, but the RFC finding did not include the reaching limitation noted by Dr. Fonte. [Id.] Plaintiff asserts that the ALJ improperly ignored this aspect of Dr. Fonte's opinion and therefore, it was reversible error. [JS 3-5.]


Under the Commissioner's regulations, state agency medical physicians and other program physicians are considered highly qualified experts in the area of Social Security disability evaluations, and their evaluations must be considered by the Commissioner as opinion evidence except for the ultimate determination of disability. 20 C.F.R. § 404.1527(f)(2)(I). However, the opinion of a non-examining physician is normally entitled to less deference than that of an examining and treating physician precisely because of a lack of opportunity to conduct an independent examination and lack of a treatment relationship with the claimant. Benecke v. Barnhart, 379 F.3d 587, 592 (9th Cir. 2004); Andrews v. Shalala, 53 F.3d 1035, 1040-1041 (9th Cir. 1995)(explaining greater weight given to opinions of treating and examining physicians because they have a greater opportunity to know and observe the patient as an individual). Standing alone, the opinion of a non-examining physician cannot constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician. Widmark v. Barnhart, 454 F.3d 1063, 1067 n. 2 (9th Cir. 2006); Morgan v. Commissioner of the Social Security Administration, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 813, 818 n. 7 (9th Cir. 1993)("'[T]he non-examining physicians' conclusion, with nothing more, does not constitute substantial evidence, particularly in view of the conflicting observations, opinions, and conclusions of an examining physician.'"(quoting Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)).

Here, the Commissioner's omission of the reaching limitation, as found by Dr. Fonte, in the determination of Plaintiff's RFC was supported by substantial evidence. Dr. Fonte's finding as to this limitation, to the extent that it departed from the finding of the examining physician, Dr. Lim, was unexplained and not supported by the record on the whole. As the ALJ noted, Dr. Lim found that Plaintiff had a normal range of motion in her upper extremities upon examination, and a review of the record indicates no medical evidence supporting a different finding. Under these circumstances, the opinion of Dr. Fonte, standing alone, does not warrant reversal of the Commissioner's finding on this claim. See Widmark v. Barnhart, 454 F.3d at 1067 n. 2.


Plaintiff further asserts that the Commissioner's decision is erroneous because the ALJ failed to account for medication side effects. [JS 7-13.] In support of the claim, Plaintiff provides a lengthy list of medications that she has been prescribed and lists their possible side effects as described by a drug website; Plaintiff also references a statement by Dr. Joseph Nassir, an examining physician, that "some" of Plaintiff's medications "may cause" some of her present symptoms but without explanation of what those symptoms were. [JS 8-13; AR 690.] Plaintiff does not specify which of these side effects she actually suffers, nor does Plaintiff cite any evidence that she has medication side effects. A review of the record does not indicate any evidence that Plaintiff suffers from the side effects listed, other than the single, non-specific reference to her medications made by Dr. Nassir.*fn2 Under these circumstances, the ALJ was not required to make a further inquiry. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005)(ALJ not required to analyze medication side effects, among other things, when such limitations were "neither credible nor supported by the record"); cf. Varney v. Secretary of Health and Human Services, 846 F.2d 581, 585 (9th Cir. 1987)(requiring further inquiry as to medication side effects when claimant gave specific testimony as to severity of side effects)(modified by 859 F.2d 1396 (9th Cir. 1988)).



In August 2006, Plaintiff underwent a physical examination performed by Dr. Nassir for the chief complaint of "severe headaches two to three times a day." [AR 688.] Dr. Nassir noted that Plaintiff started developing the migraine headaches in 1979 and that they included episodes of nausea and vomiting. [Id.] Dr. Nassir noted that Plaintiff's medical history included a history of chronic migraine headaches, osteoporosis, hypertension, hyperlipidemia, status post bilateral breast cancer, constipation, anxiety, depression, gastroesophageal reflux disease, insomnia, conjunctivitis, jaw pain, chronic diaphoresis, chronic nausea, vertigo, dizziness, anemia, and neck and back pain. [AR 688.] Dr. Nassir's neurologic evaluation of Plaintiff resulted in the following findings:

The patient is alert, awake, oriented x3. Cranial nerve II through XII intact. Motor is 5/5. Reflexes are 3/4. Sensory intact in the upper and lower extremities. No other focal deficits were noted. Neck and back examination revealed a significant amount of range of motion decreased in the neck, especially with forward and lateral rotations of about 20% to 30%. Back: There is also decreased range of motion especially with the forward flexion and lateral rotation of 20% to 30%. There is moderate amount of pain noted on the right back side area, radiating down to the leg in the sciatic portion down to the right leg and the foot as well also.

Dr. Nassir concluded that "[t]he patient is unable to perform work activities on a sustained, regular basis; therefore, Mrs. Montes is considered to be disabled at this time." [AR 691.]

The Commissioner's Finding

In the administrative decision, the ALJ rejected the findings of Dr. Nassir and did not incorporate the findings as to Plaintiff's decreased range of motion in the neurological evaluation. [AR 26.] The ALJ cited the following reasons to discount Dr. Nassir's opinion:

(1) it appeared that the examination was a "medical-legal report by a non-treating physician who saw the claimant for the sole purpose of aiding her attempt to qualify for disability benefits"; (2) the report contained only a "cursory physical examination which does not support Dr. Nassir's allegation that the claimant cannot perform even sedentary work"; (3) Plaintiff had denied having any psychiatric problems and there was no evidence of a "severe" mental impairment. [AR 26-27.] The ALJ's decision also referenced clinical evidence that called into question Plaintiff's claim of disability, including, among other things, four MRI studies of Plaintiff's brain that were normal, treating physician notes that did not indicate any significant neurological abnormalities, a consultative psychiatric examination that concluded Plaintiff was capable of handling the stresses and demands of gainful employment, and treatment notes indicating Plaintiff received conservative treatment for back pain. [AR 25.] Plaintiff asserts in Issue Three that the ALJ's rejection of Dr. Nassir's opinion, particularly the failure to address the limitations found in Dr. Nassir's neurological evaluation, was reversible error. [JS 16-17.] Plaintiff further asserts in Issue Four that these limitations should have been incorporated in the hypothetical question posed to the vocational expert at the administrative hearing. [JS 20.]


Ninth Circuit cases distinguish among the opinions of three types of physicians: those who treat the claimant (treating physicians), those who examine but do not treat the claimant (examining or consultative physicians), and those who neither examine nor treat the claimant (non-examining physicians). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); see also Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). The opinion of a treating physician is given deference because he is employed to cure and has a greater opportunity to know and observe the patient as an individual. Orn v. Astrue, 495 F.3d at 633; Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). The opinion of an examining physician is, in turn, entitled to greater weight than the opinion of a nonexamining physician. Orn v. Astrue, 495 F.3d at 631; Lester v. Chater, 81 F.3d at 830. Where the opinion of a treating or examining physician is uncontroverted, the ALJ must provide clear and convincing reasons, supported by substantial evidence in the record, for rejecting it. 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. Valentine v. Commissioner of Social Sec., 475 F.3d 684, 692 (9th Cir. 2009); Ryan v. Commissioner of Social Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Lester v. Chater, 81 F.3d at 830-831.*fn3

Here, on the whole, the reasons provided by the ALJ to reject the opinion of Dr. Nassir, the examining physician, satisfied this standard. The ALJ reasonably found that Dr. Nassir's opinion was conclusory and inadequately supported by clinical findings. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Holohan v. Massanari, 246 F.3d 1195, 1202 n. 2 (9th Cir. 2001)(holding that medical opinion is "entitled to little if any weight" where the physician "presents no support for her or his opinion"). Moreover, Dr. Nassir's opinion was in conflict with substantial evidence in the record, such as the opinion of the consultative psychiatric examiner that Plaintiff had no psychologically-related limitations in her ability to handle gainful employment and Plaintiff's denial of severe psychiatric problems. See Batson v. Commissioner of Social Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004)(holding that ALJ may discredit medical opinion regarding degree of impairment that is conclusory, brief and unsupported by the record as a whole)(citing Tonapetyan, 242 F.3d at 1149). Accordingly, Issues Three and Four are without merit.


Accordingly, IT IS ORDERED that:

1. The decision of the Commissioner is AFFIRMED.


3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel.

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