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Robert v. Michael J. Astrue

September 26, 2012


The opinion of the court was delivered by: Hayes, Judge:


The matter before the Court is the Report and Recommendation (ECF No. 23) issued by the Magistrate Judge recommending that the Motion for Summary Judgment (ECF No. 16) filed by Plaintiff Robert Warnemuende be denied and the Cross-Motion for Summary Judgment (ECF No. 22) filed by Defendant Michael Astrue be granted.


On May 30, 2007, Plaintiff applied for Social Security Disability Insurance Benefits alleging disability beginning on September 29, 2006. Plaintiff's application was denied initially and upon reconsideration. On May 27, 2010, a hearing was held before an administrative law judge ("ALJ"). At the hearing, Plaintiff amended his request to a closed period of disability from September 1, 2006 to August 27, 2008. On June 9, 2010, the ALJ issued a written decision finding that Plaintiff was not disabled. On September 27, 2010, the decision of the ALJ became final when the Appeals Council denied Plaintiff's request for review of the decision.

On November 24, 2010, Plaintiff initiated this action by filing a Complaint for judicial review of the administrative decision pursuant to 42 U.S.C. § 405(g). (ECF No. 1). On April 20, 2012, Plaintiff filed a Motion for Summary Judgment. (ECF No. 16). On June 20, 2012, Defendant filed a Cross-Motion for Summary Judgment and an Opposition to Plaintiff's Motion for Summary Judgment. (ECF Nos. 21-22).

On August 24, 2012, the Magistrate Judge issued the Report and Recommendation recommending that Plaintiff's Motion for Summary Judgment be denied and that Defendant's Cross-Motion for Summary Judgment be granted. (ECF No. 23). The Magistrate Judge found that the ALJ provided valid reasons for rejecting the opinion of the treating physician, properly disregarded the opinion of the consulting psychiatrist, and made a harmless typographical error in describing Plaintiff's residual functioning capacity.

On September 4, 2012, Plaintiff filed Objections to the Report and Recommendation. (ECF No. 24). Plaintiff contends that the Magistrate Judge failed to give controlling weight to the treating physician's opinion, erred in disregarding the consulting psychiatrist's opinion, and failed to define harmless error in its finding regarding Plaintiff's residual functioning capacity. On September 5, 2012, Defendant filed a Reply. (ECF No. 25).


The duties of the district court in connection with a report and recommendation of a magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b). The district judge must "make a de novo determination of those portions of the report ... to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b). The district court need not review de novo those portions of a Report and Recommendation to which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc).

A court "will disturb the denial of benefits only if the decision contains legal error or is not supported by substantial evidence." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (quotation omitted). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The evidence must be more than a mere scintilla but not necessarily a preponderance." Id. (quotations omitted). Where the evidence reasonably can be construed to support more than one rational interpretation, the court must uphold the ALJ's decision. Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This includes deferring to the ALJ's credibility determinations and resolutions of evidentiary conflicts. See Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001).


The opinion of a treating physician generally should be given more weight than opinions of doctors who do not treat the claimant. See Turner v. Comm'r. of Soc. Sec., 613 F.3d 1217, 1222 (9th Cir. 2010) (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)). If the treating doctor's opinion is contradicted by the opinion of another doctor, the ALJ may properly reject the treating physician's opinion only by providing "specific and legitimate reasons" supported by substantial evidence in the record for doing so. Id. This can be done by "setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating [his] interpretation thereof, and making findings." Tommasetti, 533 F.3d at 1041. "The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct." Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). A non-examining doctor's opinion, without additional supporting evidence from the record, does not constitute substantial evidence with which to reject a treating doctor's opinion. Lester, 81 F.3d at 831-32.

The ALJ rejected the opinion of Plaintiff's treating physician, Dr. Miller. In rejecting Dr. Miller's opinion, the ALJ stated:

The claimant's primary care treating doctor, Elliot Miller, M.D., stated in January 2008 that the claimant qualified for "permanent disability" due to his chronic cervical, lumbar spine and arm pain. First, Dr. Miller is not qualified in these proceedings to decide that the claimant is permanently disabled. A treating physician's medical opinion, on the issue of the nature and severity of an impairment, is entitled to special significance; and, when supported by objective medical evidence and consistent with otherwise substantial evidence of record, entitled to controlling weight .... However, statements that a claimant is 'disabled', 'unable to work', can or cannot perform a past job, meets a listing or the like are not medical opinions but are administrative findings dispositive of a case, requiring familiarity with the Regulations and legal standards set forth therein and in the Dictionary of Occupational Titles. Such issues are reserved to the Commissioner .... Second, the record fails support the doctor's opinion that the claimant ...

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