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Casey Waite v. Michael J. Astrue

December 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 disability insurance benefits and supplemental security income benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

The procedural facts are summarized in the Joint Stipulation. [JS 2]. In a May 18, 2009 hearing decision that constitutes the Commissioner's final decision in this matter, an administrative law judge ("ALJ") found that plaintiff had severe impairments consisting of a history of a right foot injury, status post "ORIF" (open reduction with internal fixation), and history of left acromioclavicular separation, also status post ORIF. [Administrative Record ("AR") 11]. The ALJ concluded that plaintiff was not disabled because he retained the residual functional capacity ("RFC") to perform his past relevant work as an electrical technician. [AR14].

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)).


Nonexamining physician

Plaintiff contends that the ALJ erred in failing properly to consider the opinion of F. Kalmar, M.D., a nonexamining state agency physician, and that this error deprived the ALJ's RFC finding of substantial evidence in the record. [See JS 3-7, 7-9].

On May 10, 2007, Dr. Kalmar completed an RFC assessment form indicating that plaintiff, who was then 33 years old, could perform sedentary work that required no balancing; occasional climbing, stooping, kneeling, crouching, and crawling; and no concentrated exposure to extreme cold, vibration, or hazards, such as heights and machinery. [AR 232-237]. Under "Additional Comments," Dr. Kalmar cited and discussed some of the medical evidence, primarily from March 2007 and April 2007, when plaintiff had a left shoulder injury and shoulder surgery following a mountain biking accident. [AR 236]. Dr. Kalmar commented: "Should have been able to work at least at a Sedentary level since [alleged onset date]." [AR 236].

The ALJ did not discuss Dr. Kalmar's opinion. Instead, he based his RFC finding on the opinion of another nonexamining physician, Dr. Lorber, a medical expert who testified during the hearing. Dr. Lorber opined that plaintiff could perform light work, except that he could not perform overhead work with his left upper extremity and could not work on ladders, ropes, or scaffolds. [See AR 13-14, 23-36].

The ALJ erred in failing to give any reasons for rejecting Dr. Kalmar's opinion. See Shafer v. Astrue, 518 F.3d 1067, 1069-1070 (9th Cir. 2008) (noting that an ALJ's silent disregard of a nonexamining physician's opinion "contravened governing regulations requiring him to . . . evaluate every medical opinion received" and was legal error); Sawyer v. Astrue, 303 Fed. Appx. 453, 455 (9th Cir.2008) ("An ALJ is required to consider as opinion evidence the findings of state agency medical consultants; the ALJ is also required to explain in his decision the weight given to such opinions."); 20 C.F.R. § 404.1527(d),(f)(stating that nonexamining source opinions are medical opinions that the ALJ must consider and weigh using the factors enumerated in that section); SSR 96-6p, 1996 WL 374180, at *1 (stating that an ALJ "may not ignore" state agency medical consultant opinions "and must explain the weight given to these opinions in their decisions").

However, the ALJ's error was harmless. See Burch, 400 F.3d at 679 ("A decision of the ALJ will not be reversed for errors that are harmless.") (citing Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir.1990)). In the absence of any treating or examining source opinions regarding plaintiff's physical functional capacity, the ALJ permissibly relied on the conflicting opinion of another nonexamining physician, Dr. Lorber, whose opinion constitutes substantial evidence supporting the ALJ's RFC finding. See Morgan, 169 F.3d at 603 ("The ALJ is responsible for resolving conflicts in medical testimony, and resolving ambiguity."); Thomas, 278 F.3d at 957 ("The opinions of non-treating or non-examining physicians may also serve as substantial evidence when the opinions are consistent with independent clinical findings or other evidence in the record.").

Dr. Lorber's opinion has greater support in the record than that of Dr. Kalmar because it was based on relevant, updated medical records that were unavailable to Dr. Kalmar, and on plaintiff's testimony in response to questions that Dr. Lorber posed to clarify gaps and ambiguities in the medical evidence. Dr. Lorber also explained more persuasively how the evidence of record supported his opinion. [See AR 23-37]. Among other things, Dr. Lorber cited medical evidence in the record indicating that plaintiff had recovered sufficiently from his March 2007 bike accident and subsequent shoulder surgery that he was riding ...

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