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Khounmy v. Astrue

June 21, 2010

THOUNE KHOUNMY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM DECISION AND ORDER

I. PROCEEDINGS

This matter is before the Court for review of the decision by the Commissioner of Social Security denying plaintiff's application for Disability Insurance Benefits and Supplemental Security Income under Titles II and XVI, respectively, of the Social Security Act, 42 U.S.C. § 400 et seq. Pursuant to 28 U.S.C. § 636(c), the parties have consented that the case may be handled by the undersigned. The action arises under 42 U.S.C. § 405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. Plaintiff and defendant have filed their pleadings (Defendant's Answer; Plaintiff's Brief in Support of Complaint; Defendant's Brief in Support of Answer; Plaintiff's Reply to Defendant's Brief in Support of Answer), and defendant has filed the certified transcript of record. After reviewing the matter, the Court concludes that the decision of the Commissioner should reversed and remanded.

II. DISCUSSION

On November 21, 2005, plaintiff Thoune Khounmy filed an application for a period of disability and Disability Insurance Benefits. (Administrative Record ["AR"] 86-90). In addition, on November 30, 2005, he filed an application for Supplemental Security Income. (AR 82-85). In both applications he alleged an inability to work since February 10, 2003 due to pain in his stomach and back. (AR 82-90, 121-24). On December 28, 2007, an Administrative Law Judge ("ALJ") determined that plaintiff was not disabled within the meaning of the Social Security Act. (AR 9-21).

Following the Appeals Council's denial of plaintiff's request for a review of the ALJ's Decision (AR 1-4), plaintiff filed an action in this Court.

Plaintiff makes two challenges to the ALJ's Decision denying benefits. Plaintiff alleges that the ALJ erred by: (1) failing to provide legally sufficient reasons for rejecting the opinion of Dr. Yen Doan, plaintiff's treating physician, concerning plaintiff's residual functional capacity ("RFC"); and (2) failing to provide specific, clear, and convincing reasons for finding plaintiff's pain testimony not credible.

Each of these contentions will be addressed in turn.

ISSUE NO. 1:

Plaintiff asserts that the ALJ failed to provide clear and convincing reasons for rejecting the uncontradicted opinion of Dr. Yen Doan, plaintiff's treating physician, concerning plaintiff's RFC. Alternatively, plaintiff asserts that, even if Dr. Doan's opinion was contradicted, the ALJ failed to provide specific and legitimate reasons for rejecting it. In response, defendant argues that the opinion of Dr. Doan was contradicted and that the ALJ did provide specific and legitimate reasons for rejecting it.

Dr. Doan, who treated plaintiff from November 2004 through November 2007, diagnosed plaintiff with acute gastritis, uncontrolled diabetes mellitus, liver dysfunction, liver cirrhosis, status post tuberculosis, depression, and stress disorder. (AR 385-99, 457-63).*fn1 He also stated that plaintiff was a disabled person due to his medical and mental illness. (AR 385). Further, in a questionnaire dated November 17, 2007, he stated that plaintiff could stand/walk less than 2 hours per workday and occasionally lift/carry up to 10 pounds, but never lift over 50 pounds. (AR 460). He also stated that plaintiff would likely be absent from work about four days per month. (AR 461).

In his Decision, the ALJ found that plaintiff had the following severe impairments: history of diabetes mellitus; hypertension; liver disease; mild tension headaches; back pain; status post tuberculosis; and thrombocytopenia. (AR 15). The ALJ also found that plaintiff had the RFC to perform the full range of light work, such that he could lift 20 pounds occasionally and 10 pounds frequently, stand and walk, with normal breaks, for a total of 6 hours in an 8-hour workday, and sit, with normal breaks, for a total of 6 hours in an 8-hour workday. (Id.). In making this light RFC finding, the ALJ did not explicitly accept the medium RFC findings of Dr. Conception Enriquez, the consultative examiner, and Dr. Durrell Sharbaugh, the state agency medical consultant, but rather considered their findings with the record as a whole and viewed the evidence in a light most favorable to plaintiff.

Contrary to plaintiff's assertion, the ALJ provided specific and legitimate reasons for rejecting the contradicted opinion evidence of Dr. Doan. See Morgan v. Apfel, 169 F.3d 595, 596 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)("To reject the opinion of a treating physician which conflicts with that of an examining physician, the ALJ must make findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record.").

The ALJ properly found that Dr. Doan did not adequately explain what accounted for plaintiff's severe limitations (see AR 16), as Dr. Doan's opinions were not supported by the objective evidence or his own treatment records (see 385-99, 443-56). See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)("The ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings."); Burkart v. Bowen, 856 F.2d 1335, 1339 (9th Cir. 1988)(holding that an ALJ properly rejected a treating physician's medical opinion that was unsupported by described medical findings, personal observations, or test results); 20 C.F.R. ยง 416.927(b)-(d)(noting that the weight given to a treating physician's opinion depends on whether it is supported by sufficient medical data ...


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