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Ralph David Rey v. Michael J. Astrue

September 29, 2011

RALPH DAVID REY,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Plaintiff Ralph David Rey seeks judicial review of the Commissioner's denial of his application for Social Security Disability Insurance ("SSDI") and Supplemental Security Income ("SSI") benefits under the Social Security Act. For the reasons set forth below, the decision of the Administrative Law Judge ("ALJ") is affirmed and the action is dismissed with prejudice.

I. Factual and Procedural History

Plaintiff was born on July 31, 1957. (Administrative Record ("AR") 20.) He earned a GED degree and has relevant work experience as a janitor, laborer, general construction worker, and tree cutter. (AR 20, 375.)

Plaintiff filed applications for SSDI and SSI benefits on May 25, 2007, alleging disability beginning December 1, 2006 due to seizures, coronary artery disease, and hypertension. (AR 125.) The Commissioner denied Plaintiff's application initially and upon reconsideration. A hearing was held before ALJ Jesse J. Pease on January 15, 2009, at which Plaintiff, his then-wife, and a vocational expert ("VE") testified. (AR 23-61.) The ALJ issued an unfavorable decision on March 3, 2009. (AR 9-22.) After the Appeals Council denied review, Plaintiff filed an action for judicial review in this Court, Rey v. Astrue, Case No. EDCV 09-1584-MLG. On March 25, 2010, the administrative decision was vacated and the case was remanded to the Commissioner based upon the ALJ's failure to make proper credibility findings. (AR 396-411.)

A second administrative hearing was held before ALJ Pease on April 30, 2010. (AR 359-378.) On October 20, 2010, the ALJ again denied Plaintiff's application for benefits. (AR 348-356.) The ALJ found that Plaintiff had not engaged in substantial gainful activity since his alleged onset date of December 1, 2006. (AR 350.) The ALJ further found that Plaintiff had the following severe impairments: alcoholism, alcohol-induced seizure disorder, and alcohol-induced liver disease. (Id.) After determining that Plaintiff's severe impairments did not meet or equal any listed impairment, the ALJ found that Plaintiff had the residual functional capacity ("RFC") to perform work at "less than a full range of light exertion." (AR 350-351.) Specifically, the ALJ found that Plaintiff retained the following RFC: "The claimant can lift and carry 20 pounds occasionally and 10 pounds frequently. He can stand and walk for 6 hours out of an 8-hour workday. He cannot climb, but he can occasionally balance, stoop, kneel, crouch, and crawl. He should avoid hazardous conditions such as working at heights or with dangerous machinery." (AR 351.)

The ALJ concluded that, given this residual functional capacity, Plaintiff was unable to perform any past relevant work. (AR 355.) The ALJ found, however, that given Plaintiff's age, education, work experience and RFC, there were other jobs that exist in significant numbers in the national economy that he could perform, including small products assembler, inspector/hand packer, and office helper. (AR 356.) The ALJ then concluded that Plaintiff was not disabled within the meaning of the Social Security Act.

Plaintiff timely filed this action, and the parties filed a Joint Stipulation ("Joint Stip.") addressing the disputed issues on September 14, 2011. Plaintiff alleges that the ALJ erred by: (1) failing to properly consider all of the relevant medical evidence of record in the case and, in particular, disregarding the opinion of Plaintiff's treating physician, Dr. Manuel Montemayor; and (2) failing to properly assess the credibility of Plaintiff and his ex-wife. (Joint Stip. 4.) Plaintiff requests that the Court vacate the ALJ's decision and remand solely for an award of benefits, or, in the alternative, that the matter be remanded for further proceedings. (Joint Stip. 20.) Defendant requests that the ALJ decision be affirmed. (Joint Stip. 20-21.)

II. Standard of Review

Under 42 U.S.C. § 405(g), a district court may review the Social Security Commissioner's decision to deny benefits. The Court must uphold the Social Security Administration's disability determination unless it is not supported by substantial evidence or is based on legal error. Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)(citing Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)). 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. Analysis

A. The ALJ Accorded Appropriate Weight to the Opinion of Plaintiff's Treating Physician Plaintiff claims that the ALJ erred in failing to discuss the August 10, 2010 opinion of his treating physician, Dr. Manuel Montemayor, M.D. (Joint Stip. 4.) Plaintiff contends that the medical report prepared by Dr. Montemayor on August 10, 2010 establishes that he has marked limitations in the ability to perform various work-related functions. More specifically, Dr. Montemayor diagnosed Plaintiff with alcohol-related liver disease with a poor prognosis and opined that he was permanently incapacitated, although a liver biopsy would be necessary before the degree and permanence of the incapacity could be determined. (AR 504.) The ALJ did not specifically reference this report in his decision. (AR 348-356.)

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 Tonapetyen 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 did not err by failing to mention Dr. Montemayor's August 2010 report. An ALJ is not required to discuss all evidence presented but need only explain why "significant probative evidence has been rejected." See Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). Here, Dr. Montemayor's report cannot be deemed to be "significant probative evidence." The report was merely a "check-the-box" form without any supporting clinical or laboratory findings. It is a one-page report, in which Dr. Montemayor checked off preprinted choices and did not provide any elaboration or explanation for his opinions. See Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995) (holding that the ALJ properly rejected a physician's determination where it was "conclusory and unsubstantiated by ...


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