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Norton v. Astrue


April 28, 2010


The opinion of the court was delivered by: Manuel L. Real United States District Judge


Pursuant to 28 U.S.C. § 636, the court has reviewed the entire file de novo, including the magistrate judge's report and recommendation and plaintiff's objections. The court agrees with the conclusions of the magistrate judge.

Although plaintiff contends the Commissioner improperly evaluated his credibility and that of his sister, the Commissioner offered multiple legally sufficient reasons for declining to credit their allegations in their entirety. For example, though plaintiff and his sister allege plaintiff suffers from disabling fatigue, and plaintiff testified that "[a] majority of the times I'm in bed all day," (TR 30), plaintiff's own treating physician opined that plaintiff was capable of standing and walking up to six hours a day, and up to four hours at a time before needing a rest period, (TR 314). Moreover, though plaintiff testified he was fatigued after helping someone else lift a bicycle weighing between 20 and 30 pounds, plaintiff's treating physician stated that plaintiff could "frequently" lift up to 50 pounds and occasionally lift up and more than 80 pounds. (TR 315.)

Other medical evidence in the record similarly undermines the testimony suggesting debilitating physical impairments. For example, Nicholas N. Lin, M.D., a consultative examining physician concluded, based upon his independent examination of plaintiff, that plaintiff had "no functional limitations and also no postural limitations." (TR 248.) A non-treating physician's opinion may constitute substantial evidence to support a finding of non-disability when it is "supported by other evidence in the record and [is] consistent with it." See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). Here, the record contains abundant medical evidence supporting Dr. Lin's conclusions. In particular, a state agency physician, like Dr. Lin, opined that plaintiff had no exertional or postural limitations. (TR 270-77.) Finally, the progress notes chronicling plaintiff's 2006 bout with West Nile disease note that plaintiff's physical examinations were within normal limits. (TR 291.)

A conflict with the medical evidence remains a valid consideration in the evaluation of a plaintiff's credibility, Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (citing 20 C.F.R. § 404.1529(c)(2)) and it is a germane reason to discount the statements of plaintiff's sister, see Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (citing Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001)). To the extent there is any error in the Commissioner's credibility analyses, therefore, which this court finds there was not, any such would be harmless. Carmickle v. Comm'r, 533 F.3d 1155, 1162, 1163 (9th Cir. 2008) (an error by the ALJ with respect to one or more factors in a credibility determination be harmless if the assessment is not arbitrary and there "remains substantial evidence supporting the ALJ's conclusions" with respect to plaintiff's credibility).

Furthermore, as the magistrate judge reasoned, there is no material legal error in the Commissioner's findings at step five of the sequential evaluation.

Accordingly, IT IS ORDERED:

1. The report and recommendation is accepted.

2. Judgment shall be entered consistent with this order.

3. The clerk shall serve this order and the judgment on all counsel or parties of record.


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