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Brasher v. Astrue

November 16, 2010


The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge


(Social Security Case)

This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the Administrative Record ("AR") before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified AR.

Plaintiff raises the following issues:

1. Whether the Administrative Law Judge ("ALJ") properly rejected the opinions of the treating physicians;

2. Whether the ALJ erred in determining Plaintiff's credibility;

3. Whether the ALJ properly considered the combined effects of Plaintiff's impairments when determining his residual functional capacity.

This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that for the reasons set forth, the decision of the Commissioner must be reversed.


In his first issue, Plaintiff asserts, generally, that the ALJ failed to properly reject the opinions of his treating physicians.

A. History of Relevant Medical Treatment

On February 27, 2003, Plaintiff was evaluated in the emergency room at Los Robles Regional Medical Center by Dr. Tchejeyan following an on-the-job injury. In a report dated April 23, 2004, Dr. Tchejeyan reviewed his own treatment of Plaintiff, along with other treatment records by various physicians and providers. (AR 261-72.)

Dr. Tchejeyan assessed work restrictions of the following nature: no sitting/standing/walking greater than 30 minutes; no bending at the waist; no lifting greater than 10 pounds; no pushing/pulling greater than 15 pounds. (AR 270-71.) This is consistent with the requirements of sedentary work, which involve lifting of no more than 10 pounds, and occasional lifting or carrying articles like docket files, ledgers and small tools. (See 20 C.F.R. §404.1567(a); SSR 83-10.) Dr. Tchejeyan noted that on April 5, 2003, Plaintiff underwent a lumbar spine epidural injection by Dr. Lipel, which, according to Plaintiff, did not provide significant relief of his symptoms, but in fact actually increased them. (AR 362.) Dr. Tchejeyan recommended referrals to a spine specialist as well as to a diabetes specialist. The spine specialist, Dr. deGrange, evaluated Plaintiff on May 6, 2003 and recommended EMG/nerve conduction studies. As Dr. Tchejeyan later noted, however, this specialist did not anticipate any need for surgery based on the current MRI findings. (AR 262.)

Dr. Tchejeyan's restrictive functional limitations were largely contradicted by other examining and treating physicians. Dr. Siciarz performed a consultative internal medicine evaluation on September 18, 2007, and Dr. Siciarz limited Plaintiff to pushing, pulling, lifting and carrying 50 pounds occasionally and 25 pounds frequently; standing and walking limited to six hours of an eight-hour day with normal breaks, with unrestricted sitting; and no restrictions in terms of hearing, seeing, speaking, or using both hands for performing fine and gross manipulation. (AR 16, 194-98, at 197.) This constitutes greater functional ability than was assessed by Dr. Tchejeyan. These conclusions were adopted by the State Agency physician, Dr. London (AR 216, 219), who found Plaintiff capable of medium exertional activity. Finally, when Plaintiff's voluminous medical records were examined by Dr. Silbart at the request of his workers' compensation counsel on November 10, 2006, he noted that Plaintiff had been treated by Dr. Litoff in 2005 and that, despite complaining of constant pain in his low back, and receiving from Dr. Litoff a diagnosis of lumbosacral sprain/strain, resolving, and degenerative disc disease of the lumbosacral spine, the ...

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