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Roger Arcaro v. Michael J. Astrue


May 18, 2011


The opinion of the court was delivered by: Honorable Jacqueline Chooljian United States Magistrate Judge



On August 31, 2010, plaintiff Roger Arcaro ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's application for benefits. The parties have consented to proceed before a United States Magistrate Judge.

This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; September 9, 2010 Case Management Order, ¶ 5.

Based on the record as a whole and the applicable law, the decision of the Commissioner is AFFIRMED. The findings of the Administrative Law Judge ("ALJ") are supported by substantial evidence and are free from material error.*fn1


On or about May 10, 2005, plaintiff filed applications for Supplemental Security Income benefits and Disability Insurance Benefits. (Administrative Record ("AR") 18, 103, 107). Plaintiff asserted that he became disabled on January 21, 1991 due to depression and gout. (AR 18, 122). The ALJ examined the medical record and heard testimony from plaintiff (who was represented by counsel), two medical experts and a vocational expert on October 22, 2007. (AR 384-424).

On January 17, 2007, the ALJ determined that plaintiff was not disabled through the date of the decision. (AR 19, 30). Specifically, the ALJ found:

(1) plaintiff has no severe medically determinable impairments (AR 21);

(2) plaintiff does not have any impairments which, considered singly or in combination, meet or medically equal one of the listed impairments (AR 26);

(3) plaintiff had no significant physical limitations, with some minimal non-exertional limitations (AR 26-27); (4) plaintiff could not perform his past *fn2 relevant work (AR 28); (5) there are jobs that exist in significant numbers in the national economy that plaintiff could perform (AR 29); and (6) plaintiff's allegations regarding his limitations were not totally credible. (AR 27).

The Appeals Council denied plaintiff's application for review. (AR 5).


A. Sequential Evaluation Process

To qualify for disability benefits, a claimant must show that he is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work he previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:

(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.

(2) Is the claimant's alleged impairment sufficiently severe to limit his ability to work? If not, the claimant is not disabled. If so, proceed to step three.

(3) Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If not, proceed to step four.

(4) Does the claimant possess the residual functional capacity to perform his past relevant work? If so, the claimant is not disabled. If not, proceed to step five.

(5) Does the claimant's residual functional capacity, when considered with the claimant's age, education, and work experience, allow him to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled.

Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920).

The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 (claimant carries initial burden of proving disability).

B. Standard of Review

Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006) (citing Flatten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 (9th Cir. 1995)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)).

To determine whether substantial evidence supports a finding, a court must "'consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing the ALJ's conclusion, a court may not substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 882 (citing Flatten, 44 F.3d at 1457).


Plaintiff contends that the ALJ improperly evaluated the medical opinions of Dr. R. Srinivasan, a state-agency examining physician. The Court finds that a remand or reversal on this basis is not warranted.

A. Pertinent Law

In Social Security cases, courts employ a hierarchy of deference to medical opinions depending on the nature of the services provided. Courts distinguish among the opinions of three types of physicians: those who treat the claimant ("treating physicians") and two categories of "nontreating physicians," namely those who examine but do not treat the claimant ("examining physicians") and those who neither examine nor treat the claimant ("nonexamining physicians"). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (footnote reference omitted). A treating physician's opinion is entitled to more weight than an examining physician's opinion, and an examining physician's opinion is entitled to more weight than a nonexamining physician's opinion. See id. In general, the opinion *fn3 of a treating physician is entitled to greater weight than that of a non-treating physician because the treating physician "is employed to cure and has a greater opportunity to know and observe the patient as an individual." Morgan v. Commissioner of Social Security Administration, 169 F.3d 595, 600 (9th Cir. 1999) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)).

The treating physician's opinion is not, however, necessarily conclusive as to either a physical condition or the ultimate issue of disability. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Rodriguez v. Bowen, 876 F.2d 759, 761-62 & n.7 (9th Cir. 1989)). Where a treating physician's opinion is not contradicted by another doctor, it may be rejected only for clear and convincing reasons. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citation and internal quotations omitted). The ALJ can reject the opinion of a treating physician in favor of another conflicting medical opinion, if the ALJ makes findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record. Id. (citation and internal quotations omitted); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (ALJ can meet burden by setting out detailed and thorough summary of facts and conflicting clinical evidence, stating his interpretation thereof, and making findings) (citations and quotations omitted); Magallanes, 881 F.2d at 751, 755 (same; ALJ need not recite "magic words" to reject a treating physician opinion -- court may draw specific and legitimate inferences from ALJ's opinion). "The ALJ must do more than offer his conclusions." Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). "He must set forth his own interpretations and explain why they, rather than the [physician's], are correct." Id. "Broad and vague" reasons for rejecting the treating physician's opinion do not suffice. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). These standards also apply to opinions of examining physicians. See Carmickle v. Commissioner, Social Security Administration, 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester, 81 F.3d at 830-31); Andrews v. Shalala, 53 F.3d 1035, 1042-44 (9th Cir. 1995).

B. Analysis

On June 13, 2007, Dr. Srinivasan performed an internal medicine evaluation of plaintiff which included a physical examination. (AR 354-56). Based on his examination of plaintiff, Dr. Srinivasan completed a Medical Source Statement of Ability to Do Work-Related Activities (Physical) ("Medical Source Statement"), in which he essentially opined that plaintiff was unable even to do sedentary work. (AR 358-62). More specifically, in the Medical Source Statement, Dr. Srinivasan opined that plaintiff (i) could lift and/or carry up to 10 pounds frequently and up to 20 pounds occasionally; (ii) could sit for only 15 minutes and stand/walk for only 10 minutes at one time without interruption; (iii) could sit, stand or walk for only one hour each in an eight hour work day; (iv) could reach, handle, finger, feel and push/pull with his hands frequently; (v) could only occasionally operate foot controls; (vi) could only occasionally climb, balance, stoop, kneel, crouch and crawl; (vii) could only occasionally be exposed to, inter alia, pulmonary irritants (e.g., dust, odors, fumes); and (viii) could tolerate only moderate (e.g., office) noise. (AR 358-62).

Plaintiff contends that the ALJ improperly rejected Dr. Srinivasan's opinions. (Plaintiff's Motion at 4-5). The Court disagrees.

First, as the ALJ noted, Dr. Srinivasan's extreme limitations on plaintiff's ability to work are inconsistent with the examining physician's own objective findings. For example, as the ALJ noted, Dr. Srinivasan reported that plaintiff had only "some soft tissue swelling over both big toes," "small amounts of ptosis" in his feet, and "some diffuse swelling over the lateral aspects of both feet." (AR 24, 355) (emphasis added). Dr. Srinivasan's report reflects no neurological abnormalities, and no significant symptoms or limitations in other parts of plaintiff's body (i.e., hands, arms, knees, legs, back). (AR 24, 355). In addition, although Dr. Srinivasan observed that plaintiff had "some" difficulty walking on the tips of his toes and heels, he also noted that plaintiff had an otherwise normal gait, plaintiff's posture was also normal, and plaintiff was able to move about during the examination "without any difficulty." (AR 24) (citing Exhibit 13F at 2 [AR 355]). Moreover, as the ALJ noted, nothing in Dr. Srinivasan's report justifies any limitation on exposure to noise or respiratory irritants. (AR 24, 354-56). In fact, the Court notes that although Dr. Srinivasan opined in the Medical Source Statement that plaintiff could only occasionally be exposed to pulmonary irritants (e.g., dust, odors, fumes), in the narrative report from his examination of plaintiff Dr. Srinivasan states that plaintiff has "no environmental limitations."

(AR 356, 362). As the ALJ reasonably concluded, "it is difficult to fathom how [Dr. Srinivasan's] modest and isolated findings could preclude an individual from sustaining sedentary work." (AR 24). Therefore, to the extent the ALJ rejected Dr. Srinivasan's opinions, he properly did so for clear and convincing reasons based on substantial evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (A discrepancy between a physician's notes and recorded observations and opinions and the physician's assessment of limitations is a clear and convincing reason for rejecting the opinion.); see also Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (affirming ALJ's rejection of physician's opinion as unsupported by physician's treatment notes); cf. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (an ALJ need not accept a treating physician's opinions that are unsupported by clinical findings or physician's own treatment notes).

Second, the ALJ also properly rejected Dr. Srinivasan's opinions because they were unsupported by the record. See Batson v. Commissioner, 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJ may discredit physicians' opinions that are conclusory, brief, and unsupported by record as a whole or by objective medical findings). Here, Dr. Srinivasan based his opinions as to plaintiff's limitations on a finding that plaintiff had "[r]ecurrent episodes of gout." (AR 356). As the ALJ noted, however, the medical records reflect only four instances in eight years where plaintiff sought medical treatment for his gout, with flare ups lasting no more than a week to 10 days. (AR 22, 24) (citing Exhibit 4F at 17-21, 24, 25 [AR 226-30, 233, 234]; Exhibit 5F [AR 241-83]); see Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (ALJ properly rejected a treating physician's opinion who prescribed conservative treatment and where the plaintiff's activities and lack of complaints were inconsistent with the physician's disability assessment). Moreover, as the ALJ noted, Dr. Srinivasan is directly contradicted by the opinions of Dr. James M. Paule, a state agency examining physician (Exhibit 11F [AR 337-42]), as well as a state agency reviewing physician (Exhibit 10F [AR 327-34]), and Dr. David Brown, one of the testifying medical experts (AR 403-08) -- all of whom found that plaintiff had no physical limitations which had lasted or could be expected to last for a continuous period of twelve months or more. (AR 21-24, 328, 342, 408). Dr. Paule's opinion was supported by his independent examination of plaintiff, and thus, even without more, constituted substantial evidence upon which the ALJ could properly rely to reject Dr. Srinivasan's opinions. See, e.g., Tonapetyan, 242 F.3d at 1149 (consultative examiner's opinion on its own constituted substantial evidence, because it rested on independent examination of claimant); Andrews, 53 F.3d at 1041. The opinions of the state agency reviewing physician and the testifying medical expert also constitute substantial evidence supporting the ALJ's decision since they are consistent with Dr. Paule's opinions and underlying independent examination and the other medical evidence in the record. See Tonapetyan, 242 F.3d at 1149 (holding that opinions of nontreating or nonexamining doctors may serve as substantial evidence when consistent with independent clinical findings or other evidence in the record); Andrews, 53 F.3d at 1041 ("reports of the nonexamining advisor need not be discounted and may serve as substantial evidence when they are supported by other evidence in the record and are consistent with it"); Morgan, 169 F.3d at 600 (testifying medical expert opinions may serve as substantial evidence when "they are supported by other evidence in the record and are consistent with it").

Accordingly, reversal or remand is not warranted on this basis.*fn4


For the foregoing reasons, the decision of the Commissioner of Social Security is affirmed.


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