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Lemay v. Astrue

February 12, 2010


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 application for disability insurance 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]. Plaintiff alleged disability beginning on November 21, 2003 due to back, leg, and neck injuries. [Administrative Record ("AR") 81-82]. The Administrative Law Judge ("ALJ") denied benefits in an October 25, 2006 written hearing decision. [AR 21-26; JS 2]. The ALJ found that plaintiff had severe impairments consisting of slight to mild disc bulges at C3-4, C4-5, and C6-7; mild left C6 radiculopathy; old anterior compression of the 12th dorsal vertebral body; degenerative disc disease at the L5-S1 level; degenerative disc disease with a mild disc bulge at the L3-4 level; and obesity. [AR 23-24]. The ALJ further found that plaintiff retained the residual functional capacity ("RFC") to perform light work with no more than occasional climbing, balancing, stooping, kneeling, crouching, or crawling. The ALJ concluded that plaintiff was not disabled because her RFC did not preclude performance of her past relevant work as a senior account manager for a telephone company. [AR 26]. After considering additional evidence submitted by plaintiff, the Appeals Council denied plaintiff's request for review of the ALJ's decision. [JS 2].

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)).


Medical Opinion Evidence

Plaintiff contends that the ALJ erred in rejecting the opinions of a treating orthopedist, Dr. Victor Gallardo, and an examining orthopedist, Dr. Ralph Steiger, in favor of the opinion of a nonexamining non-examining state agency physician, Dr. David Haaland. [See JS 5-17].

A treating physician's opinion is not binding on the Commissioner with respect to the existence of an impairment or the ultimate issue of disability. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). Where, however, a treating physician's medical opinion as to the nature and severity of an individual's impairment is well-supported and not inconsistent with other substantial evidence in the record, that opinion is entitled to controlling weight. Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001); Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); see 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); Social Security Ruling ("SSR") 96-2p, 1996 WL 374188, at *1-*2. Even when not entitled to controlling weight, "treating source medical opinions are still entitled to deference and must be weighed" in light of (1) the length of the treatment relationship; (2) the frequency of examination; (3) the nature and extent of the treatment relationship; (4) the supportability of the diagnosis; (5) consistency with other evidence in the record; and (6) the area of specialization. Edlund, 253 F.3d at 1157 & n.6 (quoting SSR 96-2p and citing 20 C.F.R. § 404.1527); Holohan, 246 F.3d at 1202.

If a treating source opinion is uncontroverted, 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 Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Tonapetyan, 242 F.3d at 1148-1149; Lester v. Chater, 81 F.3d 821, 830-831 (9th Cir. 1995). "The opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician." Lester, 81 F.3d at 831.

Dr. Gallardo's narrative reports and progress notes indicate that he began treating plaintiff for "routine problems" in 1964, when she was about seven, and that her "major problem," discogenic disease, began in the early 1990s. [AR 168, 181]. Dr. Gallardo treated plaintiff for numerous orthopedic complaints and injuries over the years, including "a severe injury to her back" [AR 181] sustained in a 1997 boating accident and injuries she suffered in three auto accidents in 2005 (one in which she was rear-ended, one in which she lost control of her car, which rolled over, and one in which she was struck as a pedestrian). [See AR 148-201; see also AR 24-25, 42].

In November 2004, Dr. Gallardo wrote a narrative report describing plaintiff's treatment history and orthopedic impairments. [AR181-183]. He opined that plaintiff was totally disabled due to: (1) cervical spondylosis at C4-5 and C5-6, with intervertebral disc degeneration and herniation at C6-7; (2) lumbar spondylosis with L4-5 and L5 intervertebral disc degeneration and herniation; (3) transitional S1 vertebral; (4) healed compression fracture of T12 with degenerative spondylosis; (5) cervical and lumbar spinal stenosis; (6) bilateral chondromalacia of the patella; and (7) right shoulder impingement syndrome. [AR 183].

In March 2005 and again in May 2005, Dr. Gallardo authored narrative reports describing plaintiff's impairments and recent examination findings. [AR 16-170]. He again opined that plaintiff was totally disabled due to the same impairments described his November 2004 report. [AR 160-170]. Dr. Gallardo also noted additional diagnoses of foraminal encroachment accompanying her C6-7 ...

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