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Herrera v. Astrue

November 15, 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 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 an application for SSI benefits on May 16, 2006, alleging that she had been disabled since June 1, 2001 due to a herniated disc, depression, anxiety, fibromyalgia, restless leg syndrome, pelvic discomfort, and irritable bowel syndrome. [JS 2; Administrative Record ("AR") 91, 102]. 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 9-20]. The ALJ found that plaintiff had a severe combination of impairments consisting of status post partial bilateral laminectomy, excision of disc herniation, and bilateral foraminotomy at L5-S1; depressive disorder, not otherwise specified ("NOS"); cannabis abuse; and alcohol abuse. [AR 12]. The ALJ determined that plaintiff retained the residual functional capacity ("RFC") to perform a restricted range of light work. [See AR 13]. The ALJ concluded that plaintiff was not disabled because her RFC did not preclude her from performing work available in significant numbers in the national economy.*fn1 [AR 13-20].

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)).


Medical Opinion Evidence

Plaintiff contends that the ALJ failed properly to consider the opinion of the Commissioner's consultative examining physician, J. Pierce Conaty, M.D., and a treating source psychological assessment. [JS 3-8, 8-13].

In general, "[t]he opinions of treating doctors should be given more weight than the opinions of doctors who do not treat the claimant." Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)); see 20 C.F.R. §§ 404.1502, 404.1527(d)(2), 416.902, 416.927(d)(2). An examining physician's opinion, in turn, generally is afforded more weight than a non-examining physician's opinion. Orn, 495 F.3d at 631; Lester v. Chater, 81 F.3d 821, 830-831 (9th Cir. 1995). If contradicted by the opinion of another doctor, a treating or examining physician's opinion can be rejected only for specific and legitimate reasons that are based on substantial evidence in the record. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Tonapetyan v. Halter, 242 F.3d 1144, 1148-1149 (9th Cir. 2001); Lester, 81 F.3d at 830-831.

Dr. Conaty

Dr. Conaty, a board-certified orthopedic surgeon, evaluated plaintiff on April 4, 2008. [AR 265-269]. He elicited a history, reviewed medical records, conducted an orthopedic examination, and reviewed lumbar spine x-rays taken that day. [AR 265-268]. Dr. Conaty diagnosed "[s]tatus postoperative laminectomy and discectomy, lumbosacral, for herniated disc disease, performed five years ago, with current evidence of significant degenerative disc disease, lumbosacral." [AR 268]. In a narrative assessment, Dr. Conaty opined that plaintiff was capable of "[l]ifting and carrying would be 20 pounds occasionally and 10 pounds frequently, standing and walking for up to 6 hours in a 4-hour [sic] workday, and sitting for 6 hours in an 8-hour workday. Climbing, stooping, kneeling, and crouching would be limited to occasionally or one-third of workday activities.". [AR 269].

On the same date he completed his examination report, Dr. Conaty completed a physical activities assessment form. [AR 270-280]. That form posed questions about the claimant's ability to perform some work-related physical activities that Dr. Conaty did not discuss in his examination report. One such question was: "Can the individual walk a block at a reasonable pace on rough or uneven surfaces?" [AR 280]. Dr. Conaty answered "No." [AR 280]. Plaintiff contends that the ALJ erred in rejecting that aspect of Dr. Conaty's opinion and in failing to incorporate that limitation into plaintiff's RFC. [See JS 3-8, 13-15].

The ALJ said that he "generally accepted" Dr. Conaty's opinion. [AR 13]. The ALJ noted, however, that certain logical and internal inconsistencies existed within and between Dr. Conaty's examination report and his responses on the form. The ALJ resolved those inconsistencies and explained his rationale. [AR 13-14]. See Morgan, 169 F.3d at 601 ("Where medical reports are inconclusive, 'questions of credibility and resolution of conflicts in the testimony are functions solely of the [Commissioner].'") (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)).

For example, the ALJ observed that Dr. Conaty identified postural and environmental limitations on the form that he did not mention in the narrative assessment portion of his examination report. [AR 13; see AR 276, 278]. The ALJ surmised that Dr. Conaty "simply overlooked these limitations in his narrative." [AR 13]. Viewing the evidence "in a light favorable to" plaintiff, the ALJ adopted those postural and environmental limitations, except for a limitation to occasional exposure to respiratory irritants. [AR 13-14]. The ALJ reasoned that there was little record evidence that plaintiff had any significant respiratory ailments or conditions, and that there appeared to be no rational relationship between plaintiff's musculoskeletal impairments and a need to avoid exposure to respiratory irritants. [AR 14]. Plaintiff does not challenge that finding, which in any event is supported by substantial evidence and free of legal error.

Plaintiff, however, does challenge the ALJ's silent disregard of Dr. Conaty's conclusion that plaintiff could not walk a block at a reasonable pace on rough or uneven surfaces. Dr. Conaty did not include that limitation in his narrative report. However, he checked it off in a section of the form assessment asking whether or not the claimant could go shopping, travel without a companion, ambulate without an assistive device, use standard public transportation, climb a few stairs at a reasonable pace with the use of a single hand rail, prepare a simple meal, feed himself or herself, care for personal hygiene, and "sort, handle, use paper/files." [AR 280]. Those questions concern the ability to perform activities of daily living. Cf. SSR 91-8p, 1991 WL 333939, at *4 ...

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