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George Todd v. Michael J. Astrue

November 28, 2011


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


Plaintiff filed a Complaint ("Complaint") on February 2, 2011, seeking review of the Commissioner's denial of his application for Disability Insurance Benefits and Supplemental Security Income. In accordance with the Magistrate Judge's Case Management Order, the parties filed a Joint Stipulation ("Jt. Stip.") on November 3, 2011. Thus, this matter now is ready for decision.*fn1


As reflected in the Joint Stipulation, the disputed issues are as follows:

1. Whether the Administrative Law Judge ("ALJ") should have afforded the treating specialist greater weight. (Jt. Stip. 4-22.)

2. Whether the ALJ provided clear and convincing reasons to reject plaintiff's subjective complaints. (Jt. Stip. 22-30.)


I. Reversal is warranted based on the ALJ's rejection of the treating physician's opinion.

In Disputed Issue One, plaintiff asserts that the ALJ should have afforded the medical opinions of plaintiff's treating physician, Dr. M. Jay Jazayeri, "controlling weight" because Dr. Jazayeri's opinions are supported by objective medical evidence. (Jt. Stip. 4-9.) Plaintiff also asserts that the ALJ ignored key medical opinion evidence in the AR. (Jt. Stip. 10-11.) These arguments are supported by the record and warrant reversal of the Commissioner's decision.

In evaluating medical opinions, the Ninth Circuit distinguishes among 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 nor 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-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 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2). Moreover, the Commissioner may reject a treating physician's opinion that is "brief and conclusionary" in the form of a "checklist" with "little in the way of clinical findings to support that conclusion that appellant was totally disabled." Batson v. Commissioner of Social Sec. Admin., 359 F.3d 1190, 1195 n.3 (9th Cir. 2004); Murray v. Heckler, 722 F.2d 499, 501 (9th Cir. 1983) (expressing preference for individualized medical opinions over check-off reports); see also Connett v. Barnhart, 340 F.3d 871, 874-875 (9th Cir. 2003) (holding that the ALJ did not err in rejecting the controverted opinion of a treating physician whose restrictive functional assessment was not supported by treatment notes); Holohan v. Massanari, 246 F.3d 1195, 1202 n.2 (9th Cir. 2001) (stating that a physician's opinion may be "entitled to little if any weight" where the physician "presents no support for her or his opinion").

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, as in this case, the treating physician's opinion is contradicted, it 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); 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). "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.

In June 2008, Dr. Jazayeri completed a Physical Capacities Questionnaire with respect to plaintiff. (AR 352-57.) Dr. Jazayeri marked the evaluation to indicate that plaintiff's impairments limit him as follows: (1) Plaintiff can stand/walk and sit for 0-2 hours at a time; (2) he can only occasionally lift and carry 10 pounds; (3) he can never climb, balance, stoop, kneel, crouch, crawl, or reach below his knees, from his waist to his knees, from his chest to his shoulders, or above his shoulders; and (4) he can only occasionally reach from his waist to his chest. (AR 353-54.) Dr. Jazayeri also noted that plaintiff is restricted in using his hands/fingers for repetitive motions due to cervical radiculopathy in his left upper extremity, and is restricted in using his feet for repetitive movements due to a lumbosacral sprain and respiratory problems. (AR 353.)

The ALJ gave "no weight" to Dr. Jazayeri's medical opinions because he found that they were "not supported by the objective findings." (AR 23.) Specifically, the ALJ found that Dr. Jazayeri's opinions conflicted with those of Dr. Adi Klein, an examining physician, as well as those of Dr. E.L Gilpeer, a consultative physician. (AR 22-23, 176-89.) Dr. Klein performed an internal medicine evaluation of plaintiff in March 2007. (AR 176-83.) Dr. Klein noted that plaintiff could not recall any specific injury that might have caused his sleep apnea and that plaintiff had not been hospitalized for that condition within the past year. (AR 176.) Dr. Klein noted that plaintiff was sleeping when she entered the exam room and seemed to be in no acute distress. (AR 178.) Dr. Klein found no tenderness to palpation or muscle spasm in plaintiff's back and found that the straight leg test was "negative" at 90 degrees (both seated and supine). (AR 179.) Dr. Klein further found that the range of motion of plaintiff's back on flexion was to 30/90, extension was to 0/25, right lateral flexion was to 10/25, and left lateral flexion was to 20/25, "all with pain." (Id.) Based on this examination, Dr. Klein concluded that, due to his impairments, plaintiff: (1) Can lift and carry 50 pounds occasionally and 25 pounds frequently; (2) can walk and stand six hours out of an eight hour workday, with appropriate breaks; (3) can sit six hours out of an eight hour workday; and (4) suffers from no postural, manipulative, visual or communicative limitations. (AR 181.) Dr. Gilpeer examined plaintiff's medical records and completed a Physical Residual Functional Capacity Assessment in March 2007. (AR 184-89.) Dr. Gilpeer agreed with Dr. Klein's assessments regarding plaintiff's functional capabilities to lift and carry, walk, stand, and sit. (AR 185-86.) Dr. Gilpeer found that plaintiff possesses no significant limitations, and that plaintiff's sole limitation is that he can only occasionally kneel. (AR 187-88.)

Based on the evidence above, as well as on his own reading of the medical record evidence, the ALJ found that plaintiff: (1) Can occasionally lift and carry 10 pounds and frequently lift and carry less than 10 pounds; (2) can stand and walk for approximately two hours in an eight hour day and can sit for six hours in an eight hour day; (3) cannot climb ladders/ropes or crawl; (4) can occasionally climb ramps/stairs, balance, stoop, kneel and crouch; (5) can occasionally reach ...

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