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David Frost v. Michael J. Astrue

August 24, 2012


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


Plaintiff David Frost seeks judicial review of the Commissioner's final decision denying his application for Supplemental Security Income ("SSI") benefits under Title XVI of the Social Security Act. 42 U.S.C. § 1381 et seq. For the reasons set forth below, the decision of the Commissioner is affirmed.

I. Background

Plaintiff was born on December 14, 1956. (Administrative Record ("AR") at 117.) He has a high school education and has work experience as a hydraulic technician and clerk. (AR at 123, 127.) Plaintiff filed his application for SSI benefits on November 18, 2008, alleging disability since April 12, 2008 due to depression. (AR at 10, 51.)

Plaintiff's application was denied initially on March 4, 2009, and upon reconsideration on June 4, 2009. (AR at 52-56, 57-61.) An administrative hearing was held on September 1, 2010, before Administrative Law Judge ("ALJ") Joseph Schloss. Plaintiff, represented by counsel, testified, as did a Vocational Expert ("VE"). (AR at 25-38.)

On October 18, 2010, ALJ Schloss issued an unfavorable decision. (AR at 10-19.) The ALJ found that the Plaintiff had not engaged in substantial gainful activity since the alleged onset date. (AR at 13.) The ALJ further found that pursuant to 20 C.F.R. 416.920(c), the medical evidence established that Plaintiff suffered from the severe impairment of a depressive disorder with anxiety features. (Id.) However, the ALJ concluded that Plaintiff's impairments did not meet nor equal, one of the listed impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1. (Id.)

The ALJ found that Plaintiff retained the residual functional capacity ("RFC") to perform a full range of work at all exertional levels with the following limitations: "the claimant is precluded from work that requires safety operation, responsibility for the safety of others, and hypervigilance." (AR at 14.) The ALJ concluded, based on the VE's testimony that there were a significant number of jobs in the national economy that Plaintiff could perform, such as industrial cleaner, hand packager, and bench assembler. (AR at 18-19.) The ALJ found that Plaintiff was not disabled within the meaning of the Social Security Act. See 20 C.F.R. § 416.920(f). (AR at 19.)

On January 6, 2012, the Appeals Council denied review (AR at 1-3). Plaintiff timely commenced this action for judicial review. On August 13, 2012, the parties filed a Joint Stipulation ("Joint Stip.") of disputed facts and issues. Plaintiff contends that the ALJ erred in failing to: (1) properly consider the treating physician's opinion; (2) consider the side effects of Plaintiff's medication; (3) provide a complete assessment of Plaintiff's RFC; (4) pose a complete hypothetical question to the VE; and (5) properly consider lay witness testimony. (Joint Stip. at 2-3.) Plaintiff seeks reversal of the Commissioner's denial of his application and payment of benefits or, in the alternative, remand for a new administrative hearing. (Joint Stip. at 27.) The Commissioner requests that the ALJ's decision be affirmed. (Id.)

II. Standard of Review

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.

III. Discussion

A. The ALJ Accorded Appropriate Weight to the Opinion of Plaintiff's Treating Physician

Plaintiff contends that the ALJ erred in failing to give controlling weight to the opinion of Plaintiff's treating physician, Dr. Amador. (Joint Stip. at 3.) On December 9, 2008, Dr. Amador completed an assessment which concluded that Plaintiff had the following mental limitations: he could not maintain a sustained level of concentration; he could not sustain repetitive tasks for an extended period; he could not adapt to new or stressful situations; and he could not complete a 40 hour work week without decompensating. (AR at 211.)

An ALJ should generally accord greater probative weight to a treating physician's opinion than to opinions from non-treating sources. See 20 C.F.R. ยง 404.1527(d)(2). The ALJ must give specific and legitimate reasons for rejecting a treating physician's opinion in favor of a non-treating physician's contradictory opinion. Orn v. Astrue, 495 F.3d 625 (9th Cir. 2007); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). However, the ALJ need not accept the opinion of any medical source, including a treating medical source, "if that opinion is brief, conclusory, and inadequately supported by clinical findings." Thomas, 278 F.3d at 957; accord Tonapetyan, 242 F.3d at 1149. The factors to be considered by the adjudicator in determining the weight to give a medical opinion include: "[l]ength of the treatment relationship and the frequency of examination" by the ...

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