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Michael W. Pilkinton v. Michael J. Astrue

March 31, 2011

MICHAEL W. PILKINTON
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY
DEFENDANT.



The opinion of the court was delivered by: Alicia G. Rosenberg United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Michael W. Pilkinton filed a complaint on August 4, 2009. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before Magistrate Judge Rosenberg on September 3 and 18, 2009. (Dkt. Nos. 8, 9.) On May 5, 2010, the parties filed a Joint Stipulation ("JS") that addressed the disputed issues. The Court has taken the matter under submission without oral argument.

Having reviewed the entire file, the Court affirms the decision of the Commissioner.

I.PROCEDURAL BACKGROUND

On June 8, 2005, Pilkinton filed an application for disability insurance benefits. Administrative Record ("AR") 124-26. Pilkinton alleged a disability onset date of February 1, 2003. AR 124. The application was denied. AR 75-79. On February 22, 2006, Pilkinton filed new applications for disability insurance benefits and supplemental security income. AR 18. He alleged a disability onset date of May 10, 2005. Id. The applications were denied initially and on reconsideration. Id. Pilkinton requested a hearing before an Administrative Law Judge ("ALJ"). AR 96. On August 20, 2008, the ALJ conducted a hearing at which a medical expert, a vocational expert ("VE"), and Pilkinton testified. AR 32-69. On February 10, 2009, the ALJ issued a decision denying benefits. AR 18-30. On or about April 17, 2009, Pilkinton requested that the Appeals Council review the decision denying benefits. AR 9. On June 9, 2009, the Appeals Council denied the request for review. AR 1-3. This action followed.

II. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence, or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

In this context, "substantial evidence" means "more than a mere scintilla but less than a preponderance -- it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523. In determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. Where the evidence is susceptible to more than one rational interpretation, the Court must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523.

III. DISCUSSION

A. Disability

A person qualifies as disabled and is eligible for benefits, "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003) (citation and quotation marks omitted).

B. The ALJ's Findings

The ALJ found that Pilkinton met the insured status requirements through December 31, 2009. AR 20. Pilkinton has the medically determinable severe impairment of degeneration of the lumbar spine. Id. He has the residual functional capacity ("RFC") "to perform a range of light work." AR 22. He "can occasionally lift and carry twenty pounds and frequently lift and carry ten pounds, . . . can stand, walk and sit for a total of six hours in an eight-hour workday, . . . [and] can occasionally stoop and crouch." Id. He "is to avoid work [ing] over the shoulder level, climbing ladders, working at unprotected heights, [using] vibrating tools, and [using] hazardous equipment." Id. The ALJ found that Pilkinton is not able to perform any past relevant work as a construction worker. AR 29. There are, however, jobs that exist in significant numbers in the national economy that Pilkinton can perform, such as housekeeper, bench assembler, and small product assembler. AR 29-30.

C. Dr. Kiester and Dr. Ryba

Pilkinton argues that the ALJ improperly rejected the opinions of Drs. Ryba and Kiester.

An opinion of a treating physician is given more weight than the opinion of non-treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). When a treating physician's opinion is contradicted by another doctor, "the ALJ may not reject this opinion without providing specific and legitimate reasons supported by substantial evidence in the record. This can be done by setting out a detailed and thorough summary of the facts and conflicting clinical ...


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