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Johnny Flores v. Michael J. Astrue

August 23, 2011


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 ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

Plaintiff filed his benefits applications on February 22, 2006, alleging disability beginning on January 19, 2006. [JS 2; Administrative Record ("AR") 100-104, 111-115]. In a written hearing decision that constitutes the Commissioner's final decision in this matter, an administrative law judge ("ALJ") concluded that plaintiff was not disabled. [AR 8-23]. The ALJ found that plaintiff had a severe combination of impairments consisting of a back disorder, left knee disorder, mood disorder not otherwise specified ("NOS"), and an anxiety disorder NOS. [AR 10]. The ALJ determined that plaintiff retained the residual functional capacity ("RFC") to perform a restricted range of sedentary work. [AR 11-12]. The ALJ concluded that plaintiff was not disabled because his RFC did not preclude him from performing work available in significant numbers in the national economy. [AR 12-23].

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 evidence and development of the record Plaintiff contends that the ALJ failed properly to consider the opinion of the Commissioner's treating physician, David Lanum, M.D., and that the ALJ failed to fully and fairly develop the record with respect to Dr. Lanum's opinion.

In general, "[t]he opinions of treating doctors should be given more weight than the opinions of doctors who do not treat the claimant." Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)); see 20 C.F.R. §§ 404.1502, 404.1527(d)(2), 416.902, 416.927(d)(2). An examining physician's opinion, in turn, generally is afforded more weight than a non-examining physician's opinion. Orn, 495 F.3d at 631; Lester v. Chater, 81 F.3d 821, 830-831 (9th Cir. 1995). If contradicted by the opinion of another doctor, a treating or examining physician's opinion can be rejected only 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 v. Halter, 242 F.3d 1144, 1148-1149 (9th Cir. 2001); Lester, 81 F.3d at 830-831.

The ALJ provided a thorough summary of plaintiff's treatment records from Arrowhead Regional Medical Center ("ARMC"), where plaintiff was seen by Dr. Lanum and other providers, both before and during the alleged period of disability. Dr. Lanum treated plaintiff for a variety of complaints, including back and knee pain, depression, and anxiety. [See AR 13-18, 262-283, 299-367, 400-426, 428-510].

Plaintiff takes issue with the ALJ's finding that

[t]he disability forms that Dr. Lanum submitted to the DMV and other agencies are not entitled to significant weight. Social Security Regulations provide that a decision by any non-governmental agency or any other governmental agency that an individual is "disabled" is based on the rules of that agency. The Social Security Administration, however, makes a determination of disability on Social Security law. Hence, a decision by any other agency, either non-governmental or governmental, that a claimant is disabled or unable to work is not binding on the Administration. [JS 3 (quoting AR 19)].

Plaintiff argues that it is not clear from the record which disability opinions the ALJ is describing. Plaintiff asserts that the record does not contain copies of the disability forms completed by Dr. Lanum, precluding him from adequately addressing the ALJ's rejection of those opinions. [JS 3-4]. Plaintiff also argues that the ALJ did not articulate specific, legitimate reasons based on substantial evidence for rejecting those opinions.

Dr. Lanum's treatment notes indicate that when plaintiff was seen on October 17, 2005, he [r]equest[ed] a disabled person's placard form be filled out as a result of his herniated disk. Apparently, he had such while he was in New Mexico and was to have it filled out by his surgeon, [but his] orthopedic surgeon did not fill the form out correctly, and it was returned to him. He ...

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