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Wall v. Astrue

July 13, 2010


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


This matter is before the Court for review of the Decision by the ALJ denying plaintiff's application for Disability Insurance Benefits under Sections 216(i) and 223 of the Social Security Act. 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 (Plaintiff's Brief; Memorandum in Support of Defendant's Answer), and the defendant has filed the certified transcript of record.


On March 13, 2006, plaintiff Katherine D. Wall filed an application for a period of disability or Disability Insurance Benefits, alleging an inability to work since June 15, 1998 due to chemical sensitivity and depression. (Administrative Record ["AR"] 110-14, 118-24). On June 27, 2008, an Administrative Law Judge ("ALJ") found that plaintiff had one severe impairment, a chemical sensitivity, and determined that plaintiff was not disabled within the meaning of the Social Security Act. (AR 11-21).

Following the Appeals Council's denial of plaintiff's request for a review of the hearing Decision on February 27, 2009 (AR 1-4), plaintiff filed an action in this Court.

Plaintiff makes four challenges to the ALJ's Decision denying benefits. Plaintiff alleges that the ALJ erred in (1) failing to give appropriate weight to the opinions of plaintiff's treating physician; (2) determining plaintiff's Residual Functional Capacity ("RFC"); (3) determining that plaintiff could return to her past relevant work; and (4) finding that plaintiff's testimony regarding her limitations were not credible. Plaintiff also claims that there is new and material evidence that warrants reversing the ALJ's Decision.

For the reasons discussed below, the Court concludes that the Decision of the ALJ should be affirmed.


Plaintiff asserts that the ALJ failed to give appropriate weight to the diagnoses and opinion of her treating physician, Dr. George M. Ewing ("Dr. Ewing"). Defendant argues that the ALJ gave appropriate weight to plaintiff's treating physician.

Dr. Ewing practices in the areas of asthma, allergy and immunology. (See AR 215). Dr. Ewing has been treating plaintiff since June 15, 1998. (See id.). In an allergy evaluation dated June 15, 1998, Dr. Ewing diagnosed plaintiff with multiple chemical sensitivity. (See AR 225-229). In a letter dated August 25, 1998, Dr. Ewing stated that plaintiff had severe multiple chemical sensitivities that were highly reactant to many types of environmental chemicals and pollutants including tobacco smoke, exhaust fumes, paint odors, carpet odors, fabric odors and all types of mildew and mold spores. (See AR 316). In a letter dated September 14, 2007, Dr. Ewing encouraged plaintiff to reconsider reapplying for Social Security Benefits, based on his belief that plaintiff would likely be considered disabled. (See AR 338). In a Physical Residual Functional Capacity Questionnaire dated September 21, 2007, Dr. Ewing stated that plaintiff would miss work more than three times a month. (See AR 330-34). In the functional capacity assessment conducted by Dr. Ewing on September 21, 2007, he noted that plaintiff would have only a slight limitation in the ability to deal with work stress, that plaintiff must avoid all volatile chemicals, and marked "N/A" with respect to restrictions against lifting, carrying, sitting, standing, and walking, which suggested that plaintiff had an unlimited capacity in these exertional areas. (See 330-34).

Clear and convincing reasons are required to reject the treating doctor's ultimate opinions. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). "The ALJ may disregard the treating physician's opinion whether or not that opinion is contradicted." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). If the treating doctor's ultimate opinion is not supported by his progress notes, the ALJ is not required to give substantial weight to the treating doctor's opinion. See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (finding that the ALJ properly rejected the treating physician's opinion when that opinion was contradicted by or inconsistent with the treatment reports).

Here, the ALJ provided clear and convincing reasons for rejecting Dr. Ewing's ultimate conclusion that plaintiff should be considered disabled. As discussed by the ALJ (see AR 18), Dr. Ewing's opinion was inconsistent with his own statement that plaintiff's symptoms were generally controlled with medication (see AR 215-16) [Dr. Ewing's May 21, 2001 letter stating that plaintiff's use of Benadryl every 4-6 hours, Xanax every 6 hours, Alka-Seltzer Gold 1 to 3 times a day, and antihistamines in the form of Claritin once a day generally controlled her symptoms, particularly when she had flare ups from chemical exposures]; and (see AR 335-39) [Dr. Ewing's September 21, 2007 letter stating that plaintiff's diagnosis of multiple chemical sensitivity was "adequately controlled."] See Warre v. Comm'r of the Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) ("Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for SSI benefits.").

Additionally, the ALJ found that Dr. Ewing's September 21, 2007 functional capacity assessment was inconsistent with his disability opinion. (See AR 20). Even though the ALJ essentially concurred with Dr. Ewing's RFC assessment, the ALJ properly found Dr. Ewing's statement that plaintiff would miss work more than three days a month (see AR 330-34) was not supported by objective evidence and was simply conclusory (see AR 20). 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.").

The ALJ's RFC assessment was based on the following objective evidence: Dr. Concepcion A. Enriquez's May 11, 2006 consultative medical examination finding that plaintiff could occasionally lift and/or carry 50 pounds, frequently lift and/or carry 25 pounds, stand and/or walk with normal breaks for six hours in an eight-hour workday, and sit with normal breaks for six hours in an eight-hour day (see AR 19, 268-72); plaintiff's testimony that when she left the situations causing reactions, i.e., going into clean air, her symptoms cleared up in a few minutes to about one hour (see AR 19, 32); Dr. Sami Nafoosi's expert testimony that plaintiff's symptoms were relieved with antihistamines within a few minutes to within a period of less than five days, that none of these symptoms resulted in a need for hospitalizations or emergency rooms, and that plaintiff had an acute neurological episode and symptomotology which was resolved with antihistamines, and that plaintiff did not have what was typically observed in an emergency room such as skin rashes and shortness of breath (see AR 19, 33). See Magallanes v. Bowen, supra 881 F.2d at 752 (the reports of consultative physicians called in ...

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