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Larose v. Astrue

October 25, 2010


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.

Administrative Proceedings

Plaintiff filed her benefits applications on June 6, 2007. She alleged that she had been disabled since March 3, 2007 due to a pinched nerve in the neck, degenerative disc disease, and depression. [JS 1-2; Administrative Record ("AR") 121]. In a written hearing decision that constitutes the Commissioner's final decision in this matter, an administrative law judge ("ALJ") concluded that plaintiff was not disabled. [AR 9-16]. The ALJ found that plaintiff had severe degenerative disc disease of the lumbar spine, status post laminectomy. [AR 11]. The ALJ determined, however, that plaintiff retained the residual functional capacity ("RFC") to perform a limited range of light work. [AR 12]. The ALJ concluded that plaintiff was not disabled because her RFC did not preclude her from performing work that exists in significant numbers in the national economy. [JS 2; AR 19].

Standard of Review

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)).


Treating Source Opinions

Plaintiff contends that the ALJ erred in rejecting the opinions of plaintiff's treating physicians regarding her inability to work and her functional limitations.[See JS 4-11].

Where the opinion of a treating or examining physician is uncontroverted, the ALJ must provide clear and convincing reasons, supported by substantial evidence in the record, for rejecting it. If contradicted by that of another doctor, a 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, 1148-49 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830-831 (9th Cir. 1995).

Plaintiff alleged that she stopped working in March 2007 due to back pain. On March 19, 2007, she told Peter Hsien Cheng, D.O., that she had an epidural steroid injection in August 2006 that gave her good relief from back pain, but that the pain had returned and was "very severe." [AR 283]. Dr. Cheng diagnosed degeneration of the lumbar intervertebral disc, spinal stenosis*fn1 of lumbar region, disorder of lumbar intervertebral disc, and spondylosis*fn2 of lumbar joint. [AR 284]. He administered an epidural steroid injection. Plaintiff also was prescribed acupuncture. [AR 281-290].

In April 2007, plaintiff told another Kaiser Permanente physician, Hung-Ping Pai, D.O., that she continued to have back pain. Dr. Pai gave her diagnoses of degeneration of lumbar intervertebral disc and sciatica. He prescribed medication and said that plaintiff was "off work from 4/13 for 30 days." [AR 291].

On May 4, 2007, plaintiff followed up with Catherine Potyondy, M.D., for complaints of ongoing pain. Dr. Potyondy diagnosed spondylosis of lumbar joint. She prescribed medication, ordered a lumbar spine MRI, and directed plaintiff to remain off work for 60 days, that is, until July 4, 2007. [AR 293]. Plaintiff's May 21, 2007 MRI showed a "far lateral disk herniation," but her symptoms appeared "to be more consistent with an S1 radiculopathy," although there was no evidence of S1 nerve root compression. [AR 299; see 295-297]. Plaintiff declined a suggested referral to the chronic pain center. [AR 300].

On September 25, 2007, Dr. Potyondy stated in a "Visit Verification Form" that plaintiff "was seen in this office. [She] has been ill and is unable to attend work from 8/31/2007 through 12/28/2007." [AR 212]. Dr. Potyondy subsequently authorized plaintiff to remain off work from December 28, 2007 through March 26, 2008 pending a possible selective nerve root block. [AR 315].

On December 4, 2007, plaintiff saw Chris We-Chung Tang, M.D., for a spine surgery consultation. [AR 251]. She complained of back pain that was constant, worse with any activity, and better with sitting in her recliner. She said that her leg pain was worse with walking, standing, prolonged sitting, lying flat, and better with sitting in her recliner. [AR 251]. Plaintiff reported that acupuncture had been of some help, physical therapy and medications had provided minimal relief, and epidural steroid injections had not helped. She said that she would "rather be paralyzed than to continue to live with this." [AR 251].

Dr. Tang's impression was degenerative disc disease with left far lateral L 4/5 herniated nucleus pulposus and neural foraminal stenosis. [AR 254]. He discussed with plaintiff the options of further conservative treatment (more physical therapy, medications, activity modification, and epidural steroid injections) "versus surgery (L L4/5 diskectomy, foraminotomy, far lateral approach)." [AR 342]. Dr. Tang wrote that while plaintiff's left leg symptoms were likely due to left L 4/5 neural foraminal stenosis , she had "some symptoms that are not explainable with the L4 root distribution," and he doubted that surgery to relieve her left leg symptoms would eliminate all of her symptoms. Dr. Tang said that "the likely source" of plaintiff's lower back pain was "multifactorial," including degenerative disc disease of the lumbar spine and "myofascial etiology." [AR 254]. The risks and possible complications of surgery were discussed. Dr. Tang wrote that he would like plaintiff to "get a[n] L L4/5 transforaminal nerve root block for both therapeutic and diagnostic purpose[s]," and he instructed her to return to see him after obtaining the nerve root block. [AR 254-255].

On February 5, 2008, plaintiff saw Dr. Cheng to discuss a selective nerve root block "for intractable low back pain and sciatica" with spinal stenosis. [AR 317]. Plaintiff underwent another MRI, followed by left and right transforaminal injections for selective nerve root ...

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