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Marshall v. Astrue

November 19, 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 disability insurance benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

Plaintiff filed a disability benefits insurance application on September 18, 2007. He alleged that he had been disabled since January 1, 2007 due to lymphedema*fn1 , peripheral neuropathy, and carpal tunnel syndrome. [JS 2; Administrative Record ("AR") 70, 82, 92]. In a written hearing decision that constitutes the Commissioner's final decision in this matter, an administrative law judge (the "ALJ") concluded that plaintiff was not disabled. [AR 9-19]. The ALJ found that plaintiff had a severe disorder of the musculoskeletal system, lymphedema, peripheral neuropathy, and morbid obesity, but that he retained the residual functional capacity ("RFC") to perform essentially a full range of light work. [AR 10-13, 18]. Relying on the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart B, Appendix 2 (the "grids"), the ALJ concluded that plaintiff could perform work available in significant numbers in the national economy. [AR 18].

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 Opinion

Plaintiff contends that the ALJ failed adequately to consider the opinion of treating physician Richard H. Gordinier, M.D. [See JS 1-11].

Treatment reports in the record indicate that Dr. Gordinier treated plaintiff at The Phelan Clinic between June 26, 2000 and March 6, 2008. [AR 143-173]. The ALJ noted that Dr. Gordinier "provided routine, conservative treatment on an outpatient basis for complaints of swelling and pain," specifically, "pain in the lower back, soreness in the shoulders, and swelling in the wrists and legs," and referred plaintiff for a neurological consultation. [AR 14]. In May 2008 and August 2008, plaintiff underwent right and left carpal tunnel release surgery, respectively. [AR 29, 214-217]. The ALJ remarked that post-surgical treatment reports showed no evidence of wrist swelling, which the ALJ interpreted as evidence of the effectiveness of plaintiff's carpal tunnel release surgeries. [AR 14].

In his hearing decision, the ALJ said that had read and considered a note from Dr. Gordinier excusing plaintiff from work from May 16, 2007 through November 16, 2007 [AR 159], as well as a note from Dr. Gordinier dated November 12, 2007 [AR 148] stating that plaintiff was permanently disabled due to chronic lymphedema. [See AR 15]. The ALJ wrote that Dr. Gordinier's "conclusions have no probative value and [I] reject them. As an opinion on an issue reserved to the Commissioner, these statements are not entitled to controlling weight and are not given special significance pursuant to 20 C.F.R. [§] 404.1527(e)." [AR 15-16].

A treating physician's opinion is not binding on the Commissioner with respect to the existence of an impairment or the ultimate issue of disability. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). However, a treating physician's medical opinion as to the nature and severity of an individual's impairment is entitled to controlling weight when that opinion is well-supported and not inconsistent with other substantial evidence in the record. Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001); Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); see 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); Social Security Ruling ("SSR") 96-2p, 1996 WL 374188, at *1-*2. Even when not entitled to controlling weight, "treating source medical opinions are still entitled to deference and must be weighed" in light of (1) the length of the treatment relationship; (2) the frequency of examination; (3) the nature and extent of the treatment relationship; (4) the supportability of the diagnosis; (5) consistency with other evidence in the record; and (6) the area of specialization. Edlund, 253 F.3d at 1157 & n.6 (quoting SSR 96-2p and citing 20 C.F.R. § 404.1527); Holohan, 246 F.3d at 1202.

If a treating source opinion 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 Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Tonapetyan, 242 F.3d at 1148-1149; Lester v. Chater, 81 F.3d 821, 830-831 (9th Cir. 1995).

The notes from Dr. Gordinier are written on a prescription-pad type form entitled "Physical Medical Excuse Note." The May 2007 note requests that plaintiff be excused from work from May 16, 2007 through November 16, 2007. [AR 159]. No diagnosis or explanation is offered for excusing plaintiff from work. There are three similarly brief notes in the record from Dr. Gordinier that the ALJ did not specifically mention. Those notes are dated January 2, 2007; February 13, 2007; and April 2, 2007. They request that plaintiff be excused from work from January 7, 2007 through January 18, 2007; February 13, 2007 through April 1, 2007; and April 1, 2007 through June 1, 2007, respectively. [AR 162-163, 167]. The third note states that plaintiff "may return to normal duty or ...

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