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Rhonda Mosby v. Michael J. Astrue

June 27, 2011


The opinion of the court was delivered by: Marc L. Goldman United States Magistrate Judge


Plaintiff Rhonda Mosby seeks judicial review of the Social Security Commissioner's denial of her application for disability insurance benefits ("DIB") and Social Security Disability Insurance ("SSDI") benefits. For the reasons stated below, the decision of the Commissioner is affirmed and the action is dismissed with prejudice.

I. Facts and Procedural Background

Plaintiff was born on November 25, 1961. She completed high school and has work experience as a certified nurse's assistant. (Administrative Record ("AR") 17, 98, 102, 106.) Plaintiff filed her applications for benefits on November 29, 2007, alleging disability beginning December 1, 1996, due to schizophrenia, bipolar disorder, and back, hand and leg pain. (AR 45, 90, 101.) Her application was denied initially on May 30, 2008. (AR 47-51.) An administrative hearing was held on June 24, 2009, before Administrative Law Judge ("ALJ") Maxine R. Benmour. Plaintiff was represented by counsel and testified on her own behalf. (AR 24-37.) ALJ Benmour issued an unfavorable decision on August 11, 2009. (AR 12-19.) The ALJ found that Plaintiff suffered from the severe impairments of depression, uterine fibroids, knee pain and obesity. (Id.) However, these severe impairments did not meet the requirements of a listed impairment found in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR 15.)

The ALJ found that Plaintiff retained the residual functional capacity ("RFC") to perform medium work as follows: "The claimant can lift and carry 50 pounds occasionally and 25 pounds frequently. She can sit, stand, and walk for six hours in an eight-hour day with normal breaks. She can occasionally climb, balance, stoop, kneel, crouch, crawl, and squat. She is limited to simple, one-totwo-step job instructions with no production quotas and occasional contact with supervisors, co-workers, and the public." (AR 15.) Although Plaintiff could not perform her past relevant work as a certified nurse's assistant, the ALJ concluded that there were jobs in the national economy which Plaintiff could perform, such as hand packager and sandwich maker, and therefore Plaintiff was not disabled under the Social Security Act. (AR 17, 18.)

The Appeals Council denied review on August 20, 2010 (AR 1-4), and Plaintiff commenced this action for judicial review. On June 20, 2011, the parties filed a Joint Stipulation ("Joint Stip.") of disputed facts and issues, including the following claims of error:

(1) the ALJ failed to properly consider the opinion of Plaintiff's treating psychiatrist; and (2) the ALJ failed to provide clear and convincing reasons for rejecting Plaintiff's subjective complaints. (Joint Stip. 3.) Plaintiff asks the Court to reverse and order an award of benefits, or in the alternative, remand for further administrative proceedings. (Joint Stip. 24.) The Commissioner requests that the ALJ's decision be affirmed. (Joint Stip. 24-25.)

II. Standard of Review

Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The Commissioner's decision must be upheld unless "the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Tackett v. Apfel, 180 F.3d 1094 (9th Cir. 1999); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means more than a scintilla, but less than a preponderance; it is evidence that a reasonable person might accept as adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)(citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can support either affirming or reversing the ALJ's conclusion," the reviewing court "may not substitute its judgment for that of the ALJ." Robbins, 466 F.3d at 882.

III. Discussion

A. The ALJ Accorded Appropriate Weight to the Opinion of Plaintiff's Treating Physician

Plaintiff contends that the ALJ erred in failing to give controlling weight to the opinion of her treating psychiatrist, Dr. Richard King, M.D. (Joint Stip. 4.) On April 9, 2008, Dr. King diagnosed Plaintiff with major depressive order with psychotic features. (AR 207.) He prescribed the drugs Geodon and Lexapro. (Id.) Also, in a Mental Residual Functional Capacity Questionnaire, completed on May 7, 2009, Dr. King diagnosed Petitioner with depression and bipolar disorder, with a GAF score of 50 and found that Plaintiff had marked limitations in the ability to perform various work-related functions. (AR 226-231.)

An ALJ should generally accord greater probative weight to a treating physician's opinion than to opinions from non-treating sources. See 20 C.F.R. § 404.1527(d)(2). The ALJ must give specific and legitimate reasons for rejecting a treating physician's opinion in favor of a non-treating physician's contradictory opinion. Orn v. Astrue, 495 F.3d 625 (9th Cir. 2007); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). However, the ALJ need not accept the opinion of any medical source, including a treating medical source, "if that opinion is brief, conclusory, and inadequately supported by clinical findings." Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). The factors to be considered by the adjudicator in determining the weight to give a medical opinion include: "[l]ength of the treatment relationship and the frequency of examination" by the treating physician; and the "nature and extent of the treatment relationship" between the patient and the treating physician. Orn, 495 F.3d at 631-33; 20 C.F.R. §§ 404.1527(d)(2)(i)-(ii), 416.927(d)(2)(i)-(ii).

The ALJ provided several legitimate reasons for refusing to give Dr. King's opinion controlling weight, each of which was supported by substantial evidence in the record. First, the ALJ found that the May 7, 2009 Mental Residual Functional Capacity Report completed by Dr. King was not fully credible because there were no medical or other treatment records to support the extreme functional limitations found by Dr. King. (AR 16.) The ALJ noted that there was no evidence in Plaintiff's medical history to support Dr. King's claim that Plaintiff "has an extreme inability to maintain attention and concentration for extended periods or perform activities within a schedule, maintain regular attendance, and be punctual...." (Id.) An ALJ may discredit a treating physician's opinion if it is conclusory, brief, and unsupported by the record as a whole or by objective medical findings. Batson v. Comm'r, 359 F.3d 1190, 1195 (9th Cir. 2004); Tonapetyan, 242 F.3d at 1149. In addition, although the ALJ did not determine ...

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