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Vandover v. Astrue

March 5, 2010


The opinion of the court was delivered by: Stephen J. Hillman United States Magistrate Judge



Plaintiff Clara M. Vandover filed a Complaint on April 13, 2009 seeking review of the Decision of the Commissioner of the Social Security Administration denying Disability Insurance Benefits ("DIB"). The parties consented to proceed before United States Magistrate Judge Stephen J. Hillman. Plaintiff filed a brief in support of the Complaint ("plaintiff's brief") on August 25, 2009. Defendant filed an opposition brief ("defendant's brief") on November 23, 2009.


On August 30, 2005, plaintiff filed an application for DIB alleging an inability to work commencing on June 6, 2003. The Social Security Administration denied plaintiff's original application initially and upon reconsideration, and plaintiff filed for a hearing before an Administrative Law Judge ("ALJ"). At the hearing on October 15, 2007, plaintiff amended her alleged onset date to January 1, 2005. Following the ALJ's December 19, 2007 Decision that plaintiff was not disabled, plaintiff sought review by the Appeals Council, which declined review on February 20, 2009.

Plaintiff makes five challenges to the ALJ's determination. Plaintiff alleges that the ALJ erred in: 1) failing to provide legally sufficient reasons for discounting the medical opinion of her treating psychiatrist; 2) failing to properly consider lay witness testimony; 3) failing to fully and fairly develop the record; 4) failing to pose a complete hypothetical question to the testifying vocational expert; and 5) finding that, given plaintiff's residual functional capacity ("RFC"), she was capable of performing the jobs of kitchen helper, hospital food service worker, and hospital cleaner.

Each of plaintiff's contentions will be addressed in turn. For the reasons discussed below, the Court affirms the decision of the Commissioner.


The ALJ Provided Specific and Legitimate Reasons For Discounting the Opinion of Plaintiff's Treating Psychiatrist Plaintiff asserts that the ALJ failed to properly consider the medical opinion of her treating psychiatrist, Dr. Arezoo Rahmim. In response, defendant argues that the ALJ properly considered Dr. Rahmim's opinion and provided specific, legitimate reasons supported by substantial evidence for assigning it reduced weight.

A treating physician's opinion is entitled to greater weight than that of an examining physician. Magallanes v. Bowen, 881 F.2d 747, 751 (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." Id. 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. 20 C.F.R. § 404.1527 (2009). "The [Commissioner] may disregard the treating physician's opinion whether or not that opinion is contradicted." Magallanes, supra, 881 F.2d at 751.

Where the medical evidence is in conflict, the Commissioner has the discretion to choose between the contradicted evidence. Sanchez v. Secretary of Health and Human Servs., 812 F.2d 509, 511 (9th Cir. 1987). Where the evidence is susceptible of more than one rational interpretation, it is the Commissioner's conclusion which must be upheld. Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985).

Even if the treating physician's opinion is contradicted by another doctor, the ALJ may not reject the treating physician's opinion without providing specific, legitimate reasons, supported by substantial evidence in the record. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). Providing specific and legitimate reasons means setting out a detailed and thorough summary of the facts and conflicting clinical evidence and making interpretations and findings. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). Where 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. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 2001). While a nonexamining physician's opinion, "without more," cannot constitute substantial evidence, it may serve as substantial evidence if supported by other evidence in the record and is consistent with it. Id. at 1041-42.

Contrary to plaintiff's contention, the ALJ provided specific and legitimate reasons supported by substantial evidence in the record to assign minimal weight to Dr. Rahmim's medical opinion. (Administrative Record ["AR"] 18-19).

In his May 24, 2006 Work Capacity Evaluation (Mental) form, Dr. Rahmim indicated that plaintiff suffered two extreme limitations, seven marked limitations, and three moderate limitations. (AR 240-41). The ALJ's opinion cites specific medical evidence that was inconsistent with the degree of impairment indicated in Dr. Rahmim's checklist assessment. (AR 18-19). The ALJ summarized treating psychologist Dr. Christopher Marsey's psychological evaluation of plaintiff, in which Dr. Marsey opined that plaintiff exhibited "overall significant impairment," but displayed "erratic and inconsistent performance on memory tasks," concluding that plaintiff likely suffered from a "cognitive dysfunction" rather than a "true organic process." (AR 18, 164). The ALJ also discussed in detail the independent clinical findings of an ...

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