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Burdick v. Astrue

August 4, 2010

CAROL BURDICK, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Honorable Oswald Parada United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

The Court*fn1 now rules as follows with respect to the four disputed issues listed in the Joint Stipulation ("JS").*fn2

I. DISPUTED ISSUES

As reflected in the Joint Stipulation, the disputed issues which Plaintiff is raising as the grounds for reversal and/or remand are as follows:

(1) Whether the Administrative Law Judge ("ALJ") properly evaluated the medical evidence;

(2) Whether the ALJ properly considered Plaintiff's credibility;

(3) Whether the ALJ properly considered lay testimony; and

(4) Whether the ALJ should have elicited additional testimony from the vocational expert ("VE").

(JS at 3.)

II. STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed. 2d 842 (1971); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (citation omitted). The Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).

III. DISCUSSION

A. The ALJ Failed to Properly Consider the Opinions of the Treating Physician

The record contains treatment notes from Geeta Patwa, M.D., dating from September 2003 until March 2007. (AR at 510-77.) Dr. Patwa treated Plaintiff for a variety of conditions, including bilateral swelling in her lower extremities accompanied by tingling, burning, and pain. In an attempt to diagnose and treat the swelling, Dr. Patwa ordered many tests and referred Plaintiff to a variety of specialists, but the doctors were unable to make an affirmative diagnosis.*fn3 (Id. at 336-37, 551, 616-19, 622-24, 651.) During this time, Dr. Patwa prescribed and refilled pain medication. (Id. at 560.) A gap in Dr. Patwa's treatment of Plaintiff is apparent between March 2006 and February 2007. (Id. at 518, 525.) Dr. Patwa later explained that this was due to a lapse in Plaintiff's insurance coverage. (Id. at 650; see also id. at 500.) On March 22, 2007, Dr. Patwa completed a Physician Questionnaire for Social Security Disability Claim on behalf of Plaintiff. (Id. at 650-55.) Dr. Patwa concluded that Plaintiff can stand for a total of three hours in an eight-hour day, sit for three to four hours, ...


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