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Pamela Irene Moore v. Michael J. Astrue

February 29, 2012

PAMELA IRENE MOORE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff, who is represented by counsel, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "defendant") denying plaintiff's applications for Disability Insurance Benefits under Title II of the Social Security Act ("Act") and Supplemental Security Income benefits under Title XVI of the Act.*fn1 In her motion for summary judgment, plaintiff contends that the administrative law judge ("ALJ") in this case erred: (1) by discrediting the findings of plaintiff's treating physician, Dr. Borgquist, and by "discrediting the diagnosis of fibromyalgia;" (2) by finding that plaintiff "only suffers from depression and mild social functioning limitations despite consistent diagnoses of panic disorder with agoraphobia"; and (3) by failing "to incorporate specific limitations" arising from "moderate" limitations in concentration, persistence, and pace into the hypothetical question posed to the vocational expert ("VE"). (See generally Pl.'s Mot. for Summ. J., Dkt. No. 15 at 1.) Defendant filed an opposition to plaintiff's motion and a cross-motion for summary judgment. (Def.'s Opp'n & Cross-Motion for Summ. J., Dkt. No. 18.) Plaintiff filed a reply memorandum in support of her motion. (Pl.'s Reply, Dkt. No. 21.) For the reasons stated below, the court grants plaintiff's motion for summary judgment in part and denies the Commissioner's cross-motion for summary judgment.

I. BACKGROUND*fn2

On March 18, 2008, plaintiff filed applications for Supplemental Security Income

and Disability Insurance Benefits, both of which alleged a disability onset date of April 1, 2007. (Admin. Record ("AR") 129-33; 137-43.) The Social Security Administration denied plaintiff's application initially on August 28, 2008, and upon reconsideration on October 28, 2008. (AR 73-83.) Plaintiff requested a hearing before an ALJ, and the ALJ conducted a hearing regarding plaintiff's claim on January 13, 2010. (AR 27-57, 84-87.) Plaintiff was represented by counsel at the hearing and testified. A vocational expert, Mr. David Dettmer, also testified at the hearing. (AR 48-55.)

In a written decision dated February 12, 2010, the ALJ denied plaintiff's applications for benefits based on a finding that, while plaintiff was incapable of performing past relevant work as a secretary, plaintiff was indeed "capable of making a successful adjustment to other work that exists in significant numbers in the national economy."*fn3 (AR 21.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AR 1-5.) Plaintiff subsequently filed this action.

B. Summary of the ALJ's Findings

The ALJ conducted the required five-step evaluation and concluded that plaintiff was not disabled within the meaning of the Act. At step one, the ALJ found that plaintiff had not engaged in substantial gainful employment since April 1, 2007, the alleged date of onset of disability. (AR 14.) At step two, the ALJ concluded that plaintiff had the "severe" impairments of: "degenerative disc disease of the lumbar spine, depression, and obesity." (AR 14.) At step three, the ALJ determined that plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed in the applicable regulations. (Id. at 15 (citing 20 C.F.R. pt. 404, subpt. P, app.1).)

Prior to reaching step four of the analysis, the ALJ determined plaintiff's residual functional capacity ("RFC") as follows:

[T]he claimant has the residual functional capacity to perform a wide range of medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except that she can lift 35 pounds occasionally and 20 pounds frequently. She is capable of standing and walking at least six hours in an eight hour work day and is also capable of sitting at least six hours [in an] eight hour workday. She cannot work at heights or around hazardous, moving machinery. She is mentally limited to work requiring simple instructions. (AR 15-16, 20.)

In assessing plaintiff's RFC, the ALJ addressed plaintiff's testimony and found that plaintiff was not credible to the extent that her testimony concerning the intensity, persistence and limiting effects of her symptoms conflicted with the ALJ's RFC assessment. (AR 17.) The ALJ also addressed the medical evidence, giving "great weight" to the opinion of consultative examiner Dr. Cesar Duclair (AR 17), giving "less weight" to the opinion of treating physician Dr. Warren Borgquist (AR 18), giving "great weight" to the opinion of treating psychiatrist Dr. Bennett Garner dated October 2007 (AR 19), giving "very little weight" to the opinion of treating psychiatrist Dr. John Champlin (id.), giving "great weight" to the opinion of Dr. Manolito Castillo dated July 2008, and giving "great weight" to the opinion of Dr. Ikawa, the consulting psychiatrist (AR 20).

Having assessed plaintiff's RFC, the ALJ found at step four that given plaintiff's limitations, plaintiff "is unable to perform any past relevant work." (Id.) At step five, the ALJ found that "considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform." (AR 21.) The ALJ asked the vocational expert whether jobs exist in the national economy "for an individual with the claimant's age, education, work experience, and residual functional capacity." (Id.) The ALJ relied on the vocational expert's testimony, and found that plaintiff could perform jobs such as cashier, mail clerk, and office helper. (Id.) Because the ALJ found that plaintiff could perform such work, plaintiff is "not disabled." (AR 21-22.)

II. STANDARDS OF REVIEW

The court reviews the Commissioner's decision to determine whether it is (1) free of legal error, and (2) supported by substantial evidence in the record as a whole. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009); accord Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). This standard of review has been described as "highly deferential." Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). "'Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)); accord Valentine, 574 F.3d at 690. "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews, 53 F.3d at 1039; see also Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ("[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence."). Findings of fact that are supported by substantial evidence are conclusive. 42 U.S.C. § 405(g); see also McCarthy v. Apfel, 221 F.3d 1119, 1125 (9th Cir. 2000). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Bray, 554 F.3d at 1222; see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("'Where evidence is susceptible to more than one rational interpretation,' the ALJ's decision should be upheld.") (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). However, the court "must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Ryan, 528 F.3d at 1198 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); accord Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). "To determine whether substantial evidence supports the ALJ's decision, [a court] review[s] the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion." Andrews, 53 F.3d at 1039.

The court's review is constrained to the reasons asserted by the ALJ in the ALJ's decision. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) ("We review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely."); accord Tommasetti, 533 F.3d at 1039 n.2 (declining to review reasons provided by the district court in support of the ALJ's credibility decision that were not "expressly relied on" by the ALJ during the administrative proceedings); accord Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) (noting that the Court "cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision"); Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) ("[W]e are wary of speculating about the basis of the ALJ's conclusion -- especially when his opinion indicates that the conclusion may have been based exclusively upon an improper reason."); Barbato v. Comm'r of Soc. Sec. Admin., 923 F. Supp. 1273, 1276 n.2 (C.D. Cal. 1996) (remand is appropriate when a decision does not adequately explain how a decision was reached, "[a]nd that is so even if [the Commissioner] can offer proper post hoc explanations for such unexplained conclusions," because "the Commissioner's decision must stand or fall with the reasons set forth in the ALJ's decision, as adopted by the Appeals Council") (citation omitted).

Harmless error exists when it is clear from the record that the ALJ's error was inconsequential to the ultimate non-disability determination. Tommasetti, 533 F.3d at 1038 (citations and internal quotation marks omitted); see also Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (error in finding an impairment non-severe at step two was harmless when ALJ accounted for resulting limitations later in sequential evaluation process). In other words, the court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate non-disability determination.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006) (quoting Stout v. Comm'r, 454 F.3d 1050, 1055 (9th Cir. 2006)).

"If additional proceedings can remedy defects in the original administrative proceeding, a social security case should be remanded." Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) (quoting Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981)). "Where the Secretary is in a better position than this court to evaluate the evidence, remand is appropriate." Id. (citing McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989)).

III. DISCUSSION

A. The ALJ Permissibly Discounted Dr. Borgquist's Opinion Plaintiff contends that the ALJ erred in discounting Dr. Borgquist's opinion, which led the ALJ to erroneously conclude that plaintiff did not suffer from fibromyalgia. (Pl.'s Mot. for Summ. J. at 11-15.) Specifically, plaintiff argues that the ALJ "failed to articulate specific and legitimate reasons for not crediting" Dr. Borgquist's diagnosis of fibromyalgia. (Pl.'s Mot. for Summ. J. at 14.) Plaintiff's argument is not well-taken.

The medical opinions of three types of medical sources are recognized in social security cases: "(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians)." Lester, 81 F.3d at 830. Generally, a treating physician's opinion should be accorded more weight than opinions of doctors who did not treat the claimant, and an examining physician's opinion is entitled to greater weight than a non-examining physician's opinion. Id. Where a treating or examining physician's opinion is uncontradicted by another doctor, the Commissioner must provide "clear and convincing" reasons for rejecting the treating physician's ultimate conclusions. Id. If the treating or examining doctor's medical opinion is contradicted by another doctor, the Commissioner must provide "specific and legitimate" reasons for rejecting that medical opinion, and those reasons must be supported by substantial evidence in the record. Id. at 830-31; accord Valentine, 574 F.3d at 692. "'The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating [her] interpretation thereof, and making findings.'" Tommasetti, 533 F.3d at 1041 (modification in original) (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).

Here, the ALJ considered Dr. Borgquist's opinions regarding plaintiff's functional limitations and fibromyalgia and provided specific, legitimate reasons for discounting those opinions in light of conflicting evidence. See Lester, 81 F.3d at 830; Valentine, 574 F.3d at 692; Tommasetti, 533 F.3d at 1041. Here, the ALJ gave Dr. Borgquist's opinion "less weight" because:

Dr. Borgquist . . . does not appear to be a rheumatologist or other specialist familiar with diagnosing fibromyalgia, and he has not referred the claimant to such a specialist. The claimant has not undergone physical therapy or been referred to a pain clinic, and injections of cortisone or Novocain do not appear to have been offered. Dr. Borgquist also does not appear to have run other diagnostic tests to see if there are other causes for the claimant's reported pain. Finally, when the consulting examiner examined the claimant, the claimant did not report a significant number of painful areas that could be considered trigger points and had few symptoms, objective or otherwise, on examination. Thus, I give less weight to this opinion, as it is not adequately documented and is not consistent with the claimant's treatment records and other substantial evidence of record.

(AR 18.) The ALJ also discounted Dr. Borgquist's opinion after having determined that plaintiff was not credible regarding the intensity, persistence, and limiting effects of her symptoms. (AR 17.)*fn4

The ALJ also discounted the opinion of Dr. Borgquist in light of a conflicting opinion from Dr. Duclair, a consulting examiner. The ALJ gave "great weight" to the majority of the opinion of Dr. Duclair. (AR 17-18.) The ALJ explained that Dr. Duclair examined plaintiff and opined that plaintiff's coordination, station and gait were normal despite her obesity, that plaintiff's cervical range of motion was normal, that plaintiff has no limitations in her ability to sit, stand, or walk, that plaintiff can lift and carry 20 pounds frequently and 35 pounds occasionally, and that plaintiff can occasionally crouch, with no other limitations. (AR 17; 325-27.) The ...


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