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Atkinson v. Astrue

November 5, 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 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]. In a June 2008 written hearing decision that constitutes the Commissioner's final decision in this case, an administrative law judge ("ALJ") concluded that plaintiff was not disabled because she retained the residual functional capacity ("RFC") to perform a range of light work, and her RFC did not preclude her from performing her past relevant work as either a front desk receptionist or an assistant manager in a ladies clothing store. [AR 14-18].

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)).



Plaintiff contends that the ALJ improperly "ignored without explanation or consideration" a diagnosis of obesity by her treating physician, and also erred in failing to consider the impact of plaintiff's obesity at each stage in the sequential evaluation procedure. [See JS 3-4].

A treatment report dated from April 6, 2006 from High Desert Community Care Center ("HDCCC") stated that plaintiff weighed 178 pounds. The notation "obese" appears on that report next to a checklist for examination findings, but no diagnosis of obesity appears in the section entitled "Impression." [AR 161]. Plaintiff's height was not noted on that report; however, her height was measured at 61.5 inches by the Commissioner's consultative orthopedist. [AR 131].

The ALJ found that plaintiff had a severe musculoskeletal system impairment from minor degenerative changes. [AR 14]. The ALJ did not discuss the notation that plaintiff was "obese," plaintiff's weight or make findings regarding obesity. [AR 12-17].

Under the "treating physician rule," 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 Social Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Tonapetyan v. Halter, 242 F.3d 1144, 1148-1149 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830-831 (9th Cir. 1995).

Plaintiff's reliance on the treating physician rule is misplaced. First, neither the April 6, 2006 HDCCC report nor any other treating source report in the record included a formal diagnosis of obesity or any opinion regarding the effect of obesity on plaintiff's ability to work. [AR 161]. Thus, the argument that the ALJ "rejected" a treating source opinion is misguided.

Second, the progress note with the notation "obese" was signed only by an "NP" or nurse practitioner. [AR 161]. A nurse practitioner is not an "acceptable medical source" within the meaning of the Commissioner's regulations, but instead is considered an "other source." See 20 C.F.R. §§ 404.1513(a)&(d), 416.913(a)&(d)(distinguishing between "acceptable medical sources" and "other sources"). There is no evidence that a licensed physician signed or endorsed the nurse practitioner's conclusions. Evidence from an acceptable medical source is required to establish the existence of a "medically determinable impairment," and only a "medically determinable impairment" or combination of such impairments can be found severe or disabling. See 20 C.F.R. §§ 404.1508, 404.1513(a), 416.908, 416.913(a). Therefore, the ALJ could not have found that plaintiff's obesity was a severe, medically determinable impairment, alone or in combination with her other impairments, based solely on the nurse practitioner's findings. See Social Security Ruling ("SSR") 00-3p, 2000 WL 33952015, at * ...

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