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Margaret G. Esparza v. Michael J. Astrue

October 24, 2011

MARGARET G. ESPARZA, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: David T. Bristow United States Magistrate Judge

ORDER AFFIRMING DECISION OF COMMISSIONER

Plaintiff filed a Complaint on June 21, 2010, seeking review of the Commissioner's denial of her application for Disability Insurance Benefits under Title II and Supplemental Security Income under Title XVI of the Social Security Act. In accordance with the Magistrate Judge's Case Management Order, the parties filed a Joint Stipulation ("Jt. Stip.") on February 14, 2011. Thus, this matter now is ready for decision.*fn1

DISPUTED ISSUES

1. Whether the Administrative Law Judge ("ALJ") has properly considered all of the relevant medical evidence of record including opinions from treating physicians. (Jt. Stip. 4.)

2. Whether the ALJ has properly considered plaintiff's subjective complaints and properly assessed plaintiff's credibility. (Jt. Stip. 9.)

3. Whether the ALJ has properly developed and considered the vocational evidence and issues in this case. (Jt. Stip. 17.)

DISCUSSION

I. The ALJ properly considered the medical evidence of record.

Plaintiff asserts that the ALJ failed to properly consider "all of the relevant medical evidence in this case." (Jt. Stip. 5.) Specifically, plaintiff asserts that the ALJ failed to consider the opinion of Tushar Doshi, M.D., that plaintiff was permanently disabled, and therefore, was precluded from returning to her prior position. (Jt. Stip. 4-5.) Plaintiff also asserts that the ALJ failed to provide specific and legitimate reasons for rejecting the opinion of Dr. Doshi that plaintiff is precluded from prolonged weight bearing activities. (Id.)

In evaluating medical opinions, the Ninth Circuit distinguishes amonst three types of physicians: (1) Treating physicians (who examine and treat), (2) examining physicians (who examine but do not treat), and (3) non-examining physicians (who neither examine or treat). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (as amended). In general, more weight should be given to the opinion of a treating physician than to a non-treating physician, and more weight to the opinion of an examining physician than to a non-examining physician. Id. Although a treating physician's opinion is entitled to special weight, McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989), "[t]he 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). The weight given to a treating physician's opinion depends on whether it is supported by sufficient medical data and is consistent with other evidence in the record. See 20 C.F.R. §§ 404.1527 (d)(2) and 416.927(d)(2). When a treating or examining physician's opinion is not contradicted by another physician, it may only be rejected for "clear and convincing" reasons. Lester, 81 F.3d at 830. Where contradicted, a treating or examining physician's opinion may not be rejected without "specific and legitimate reasons" supported by substantial evidence in the record. Id. at 830-31; see also Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008).

A. Dr. Doshi

Dr. Doshi completed a "Permanent and Stationary Orthopaedic Evaluation" of plaintiff on January 23, 2007, while treating plaintiff with respect to her worker's compensation case. (AR 330-41.) The evaluation included plaintiff's self-reported history of her injury and medical history and Dr. Doshi's examination findings. However, Dr. Doshi acknowledged that "the medical opinions given in this report were arrived at without knowledge of [plaintiff's] previous medical records." (AR 330, 339.)

The Court concurs with defendant that the ALJ reasonably considered Dr. Doshi's opinion. (Jt. Stip. 6-7.) The ALJ expressly considered Dr. Doshi's opinion and noted, for example, the doctor's conclusion that plaintiff was permanent and stationary, plaintiff exhibited some loss of motion, plaintiff's reflexes were intact and*fn2 sensation was normal. (AR 14, 335-373, 339.) Plaintiff contends that the ALJ "failed to comment" on the portion of Dr. Doshi's opinion which stated: "At this point in time, [plaintiff's] level of permanent disability precludes her from returning to her usual and customary work duties as a Bilingual Instructional Aide, since the physical demands of her job as described in the job description portion of this report, exceed her current disability." (Jt. Stip. 4-5; AR 339.) However, the ALJ correctly noted that plaintiff's worker's compensation physicians' opinions regarding plaintiff's alleged disability "concerned matters reserved to the Commissioner for determination and were not based upon the Social Security Act and implementing regulations . . . ."(AR 13.) Boardman v. Astrue, 286 F. App'x 397, 399 (9th Cir. 2008) ("The ALJ is correct that a determination of a claimant's ultimate disability is reserved to the Commissioner, and that a physician's opinion on the matter is not entitled to special significance."); see also 20 C.F.R. § 404.1527(e)(1) ("We are responsible for making the determination or decision about whether you meet the statutory definition of disability. . . . A statement by a medical source that you are 'disabled' or 'unable to work' does not mean that we will determine that you are disabled."); Social Security Ruling ("SSR") 96-5p, 1996 WL 374183, at *2. In addition, in interpreting the*fn3 evidence and developing the record, the ALJ need not discuss every piece of evidence; rather, the ALJ need only discuss evidence that is significant and probative. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (holding that the ALJ "did not selectively analyze the evidence" where the ALJ referred to a combination of medical reports without specifically discussing a report of low probative value upon which the ALJ did not rely); Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (per curiam).

Furthermore, plaintiff overlooks the fact that Dr. Doshi qualified his opinion that plaintiff was precluded from returning to her prior work: "[I]n the event of [plaintiff's] employer being willing to accommodate her at work with the aforementioned work restrictions, then she may return to such modified work." (AR 339.) The Court notes that the ALJ's Residual Functional Capacity ("RFC") determination (i.e. that plaintiff had the RFC to "perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b); with appropriate breaks; with occasional postural activities; limited to moderately complex tasks with up to 4-5 step ...


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