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Kimberly Petroski v. Michael J. Astrue

December 8, 2011


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


Plaintiff Kimberly Petroski seeks judicial review of the Commissioner's denial of her application for disability insurance benefits ("DIB") and supplemental security income benefits. For the reasons discussed below, the Commissioner's decision is reversed, and this action is remanded for further proceedings.


Plaintiff was born on August 17, 1961. (AR at 65). She has relevant work experience as an account manager and sales manager at a furniture company. (AR at 103). She filed an application for DIB as well as an application for supplemental security income benefits on August 10, 2007, alleging disability beginning July 24, 2006, due to cat scratch disease and flu-like symptoms. (AR at 59, 67). The Social Security Administration denied Plaintiff's application initially on December 5, 2007. (AR at 59, 67-71).

An de novo hearing was held before Administrative Law Judge Dale A. Garwal (the "ALJ") on July 15, 2009. (AR at 59). Plaintiff, who was represented by counsel, testified at the hearing. (AR at 59). The ALJ issued a decision on September 29, 2009, denying Plaintiff's application. (AR at 59-66). The ALJ found that although Plaintiff suffers from a history of chronic fatigue syndrome ("CFS") and is unable to perform her past relevant work, she has the residual functional capacity ("RFC") to perform a full range of sedentary work and therefore is able to perform jobs that exist in significant numbers in the national economy. (AR at 61-66). The Appeals Council denied review on February 14, 2011 (AR at 3-5).

Plaintiff commenced this action for judicial review on March 18, 2011. The parties filed a joint statement of disputed issues ("Joint Stipulation") on November 21, 2011. Plaintiff contends the ALJ failed to give appropriate weight to the opinion of her treating physician, improperly evaluated her credibility, and erred in finding that she can perform other work. (Joint Stipulation at 2, 16). Plaintiff seeks remand for payment of benefits or, in the alternative, remand for further administrative proceedings (Joint Stipulation at 18-19). The Defendant requests that the ALJ's decision be affirmed or, if the Court finds that the ALJ committed reversible error, that the Court remand for further administrative proceedings. (Joint Stipulation at 19).


Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The Commissioner's or ALJ'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, 1097 (9th Cir. 1990); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a scintilla, but less than a preponderance. 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.


A. The ALJ Failed to Give Appropriate Weight to the Treating Physician's Opinion

Plaintiff contends that the ALJ improperly rejected the work-related limitations assessed by her treating physician in finding that Plaintiff could perform a full range of sedentary work.

The Commissioner is directed to weigh medical opinions based in part on their source, specifically, whether proffered by treating, examining, or non-examining professionals. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). Generally, more weight is given to the opinion of a treating professional, who has a greater opportunity to know and observe the patient as an individual, than the opinion of a non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996).

The Commissioner must also consider whether a medical opinion is supported by clinical findings and is contradicted by other medical evidence of record. The Commissioner may reject the uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 831. A contradicted opinion of a treating or examining professional may be rejected only for "specific and legitimate" reasons supported by substantial evidence. Lester, 81 F.3d at 830. If a treating professional's opinion is contradicted by an examining professional's opinion, which is supported by different independent clinical findings, the Commissioner may resolve the conflict by relying on the latter. See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); see also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (ALJ may reject opinion of treating physician in favor of examining physician whose opinion rests of independent clinical findings).

The record indicates that Plaintiff was seen by her treating physician, Gary J. Lawson, M.D., multiple times for various reasons between July 2006 and June 2008. (AR at 216-42). Dr. Lawson diagnosed Plaintiff with CFS, and the treating records contain numerous notations of "chronic fatigue" and other symptoms. On July 14, 2009, Dr. Lawson completed a questionnaire stating that Plaintiff has CFS, is incapable of tolerating even a low stress job, can only sit or stand for thirty minutes ...

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