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 and supplemental security income ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.
Plaintiff filed her applications for benefits in May 2006.*fn1 In an August 14, 2008 hearing decision that constitutes the Commissioner's final decision in this matter, an administrative law judge ("ALJ") concluded that plaintiff was not disabled because she retained the residual functional capacity ("RFC") to perform a restricted range of light work and therefore could perform her past relevant work as an office manager or medical assistant. [Administrative Record ("AR") 8-15].
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. Social 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 Social Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).
Plaintiff contends that the ALJ improperly failed to consider a consultative examiner's opinion that plaintiff should avoid even moderate exposure to vibration and improperly omitted that non-exertional limitation from his RFC finding. [See JS1-8].
The ALJ must provide clear and convincing reasons, supported by substantial evidence in the record, for rejecting the uncontroverted opinion of a treating or examining physician. A controverted 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). "Although the contrary opinion of a non-examining medical expert does not alone constitute a specific, legitimate reason for rejecting a treating or examining physician's opinion, it may constitute substantial evidence when it is consistent with other independent evidence in the record." Tonapetyan, 242 F.3d at 1148 (citing Magallanes v. Bowen, 881 F.2d 747, 752 (9th Cir.1989)).
The ALJ found that plaintiff had a severe musculoskeletal impairment consisting of a compression fracture at L1 and degenerative disc changes. He also noted that plaintiff had a history of asthma, hypertension, and irritable bowel syndrome, but that the first two conditions were effectively controlled with medication, and plaintiff had not received any significant treatment for that condition during the relevant period. [AR 11]. The ALJ further found that plaintiff's impairments did not preclude her from performing light work, except that she is limited to occasional climbing and should avoid concentrated exposure to extreme heat, cold, fumes, odors, dusts, gases, and poor ventilation, as well as concentrated exposure to working around hazardous machinery or at heights. [AR 11-15].
M. H. Yee, M.D. completed a physical residual functional capacity form stating that plaintiff could perform a reduced range of light work and should avoid even moderate vibration. [AR 235-239]. Plaintiff characterizes Dr. Yee as an examining physician. That is incorrect. Dr. Yee was a nonexamining medical consultant who merely reviewed plaintiff's file. [See AR 239]. Plaintiff underwent two consultative physical examinations, and her RFC was assessed by a second nonexamining medical consultant. [AR 229-234, 270-275, 276-281]. No physician other than Dr. Yee concluded that plaintiff had an environmental limitation precluding exposure to vibration. Furthermore, the ALJ said that he has read and considered the medical consultants' opinions. [AR 15].
All of the examining and nonexamining physicians concluded that plaintiff could perform a reduced range of light work. In finding that plaintiff could perform a reduced range of light work with no limitation involving exposure to vibration, the ALJ permissibly relied on the examining and nonexamining physicians' opinions to the extent "not inconsistent with the overall medical evidence." [AR15]. Since Dr. Yee's preclusion against even moderate exposure to vibration was inconsistent with the other examining and nonexamining ...