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Evelyn M. Bybee v. Michael J. Astrue

December 21, 2011


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"). For the reasons that follow, Plaintiff's Motion for Summary Judgment is DENIED, the Commissioner's Cross Motion for Summary Judgment is GRANTED, and the Clerk is directed to enter judgment for the Commissioner. BACKGROUND

Plaintiff, born June 2, 1958, applied on January 11, 2007 for disability benefits, with a protective filing date of December 22, 2006. (Tr. at 16, 93.) Plaintiff alleged she was unable to work since 1995 due to migraines, COPD, arthritis, heart valve, and depression. (Id. at 109.) In a decision dated October 26, 2009, ALJ Bernard McKay determined that plaintiff was not disabled. (Id. at 16-23.) The ALJ made the following findings:*fn1

1. The claimant has not engaged in substantial gainful activity since the alleged onset of disability.

2. The claimant's migraine headaches, depression, asthma/chronic obstructive pulmonary disorder (COPD) and injuries to her cervical spine are considered "severe" based on the requirements in the Regulations (20 CFR 416.920(c)).

3. These medically determinable impairments do not meet or medically equal any of the impairments listed in Appendix 1, Subpart P, Regulation No. 4.

4. The claimant's allegations regarding her limitations are not totally credible, for the reasons set forth in the body of the decision.

5. The claimant retains the residual functional capacity for a limited range of "light" exertional work as defined in 20 CFR 416.967, including the ability to lift and carry ten pounds frequently and twenty pounds occasionally. However [she] can only occasionally bend, kneel, crawl, and balanc[e]; she can never climb ladders, ropes or scaffolds; she cannot reach overhead although she can reach up to shoulder level with no limitation; she must work in a temperature-controlled environment with no concentrated exposure to fumes, odors, dust, and smoke; and she also is limited to simple, non-complex instructions involving one or two steps.

6. The claimant cannot perform past relevant work (20 CFR §§ 404.1568 and 416.968).

7. The claimant is an individual "closely approaching advanced age" (20 CFR §§ 404.1563 and 416.963).

8. The claimant has a high-school education. (20 CFR §§ 404.1564 and 416.964).

9. The claimant has an unskilled work history.

10. Although the claimant's exertional limitations do not allow her to perform the full range of medium work, using Medical-Vocational Rule 203.13*fn2 as a framework for decision-making, there are a significant number of jobs in the national economy that she could perform. Examples of such jobs include work as a[n] electronics worker, of which there are approximately 285,000 jobs in the national economy and 1,540 jobs in the Oregon economy; or a bindery machine feeder, of which there are approximately 165,000 jobs in the national economy and 1,300 jobs in the Oregon economy.

11. The claimant has not been under a "disability" as defined in the Social Security Act, at any time from the alleged onset date through the date of this decision (20 CFR § 416.920(f)).

(Tr. at 22-23.)


Plaintiff has raised the following issues: A. Whether the ALJ Erred in Failing to Find Plaintiff Disabled Under the Grids; B. Whether the ALJ Improperly Rejected the Opinions of Plaintiff's Treating Physician; C. Whether the ALJ Rejected Plaintiff's Subjective Testimony Without Providing Specific Findings and Clear and Convincing Reasons; D. Whether the ALJ Improperly Substituted His Own Opinion for Plaintiff's Treating Physicians and other Examining Physicians; E. Whether the ALJ Failed to Properly Consider the Combined Effects of Plaintiff's Multiple Impairments; and F. Whether the ALJ Erred by Basing his Decision on an Incomplete Hypothetical to the Vocational Expert Which did not Accurately Reflect Plaintiff's Condition, and Disregarding the Expert's Answer Concerning Plaintiff's Actual Condition.


The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).


A. Failure to Credit the Opinions of Treating and Examining Specialists Plaintiff first contends that the ALJ improperly rejected the opinion of plaintiff's treating physician, Dr. Heard, specifically the records contained in Exhibit 18F. Plaintiff also claims that the ALJ improperly substituted his own opinion for that of Dr. Heard and other treating and examining physicians, making his own independent findings and speculative inferences from the evidence.

The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).*fn3 Ordinarily, 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. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996).

To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons. Lester , 81 F.3d at 831. In contrast, a contradicted opinion of a treating or examining professional may be rejected for "specific and legitimate" reasons. Lester, 81 F.3d at 830. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by a supported examining professional's opinion (supported by different independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The regulations require the ALJ to weigh the contradicted treating physician opinion, Edlund v. Massanari, 253 F.3d 1152 (9th Cir. 2001),*fn4 except that the ALJ in any event need not give it any weight if it is conclusory and supported by minimal clinical findings. Meanel v. Apfel, 172 F.3d 1111, ...

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