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Melanie T. Jahrsdoerfer-Rowe v. Michael J. Astrue

October 16, 2012

MELANIE T. JAHRSDOERFER-ROWE
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge

MEMORANDUM OF DECISION

Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for disability insurance benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

The procedural facts are not disputed and are recited in the Joint Stipulation. [See JS 2]. In a written hearing decision that constitutes the Commissioner's final decision in this case, an administrative law judge (the "ALJ") found that plaintiff was not disabled prior to December 31, 2008, her date last insured, because she retained the residual functional capacity ("RFC") to perform a restricted range of light work. [JS 2; Administrtaive Record ("AR") 17-16].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).

Discussion

Treating physicians' opinions Plaintiff contends that the ALJ erred in evaluating the opinions of treating physicians Mohammed M. Ali, M.D., and Robert Jackson, M.D.

Dr. Ali is a board-certified family physician who treated plaintiff on a monthly basis from December 2007 through at least October 2010. [See AR 501-553, 605-858, 872-917]. Dr. Ali completed impairment severity questionnaires in September 2008 and November 2010, and he also wrote a letter about plaintiff's condition addressed "to whom it may concern" dated October 2008. [AR 503-510, 551-553, 864-871]. Dr. Ali gave plaintiff diagnoses of moderate spinal canal stenosis, severe foraminal stenosis, chronic back and cervical pain, severe peripheral neuropathy, hepatitis C, anxiety, depression, and fibromyalgia. [AR 503, 551, 864]. Dr. Ali noted that plaintiff was taking a number of prescribed medications, including narcotic pain medication, and that her medications caused drowsiness. Dr. Ali opined that plaintiff's impairments did not preclude her from performing the lifting and carrying requirements of light work, but he opined that she could sit, stand, and walk for only brief intervals during an eight-hour day, and would frequently need to change positions or take unscheduled breaks. He also opined that plaintiff: (1) had "moderate" or "marked" limitations using her upper extremities for fine manipulation and for grasping, turning, and twisting objects, (2) had postural and environmental limitations; (3) could tolerate little or no work stress; (4) would frequently experience symptom-based interference with attention and concentration; (5) exhibited symptoms and functional limitations that were "reasonably consistent" with her physical and mental impairments; (6) was likely to be absent more than three times a month; and (7) was not a malingerer. [AR 503-510, 551-553, 864-871].

Dr. Jackson is a board-certified neurological surgeon who treated plaintiff between February 2006 and November 2010. [AR 559-582, 918-938]. Plaintiff initially was referred to Dr. Jackson for a four-year history of progressively more severe cervical pain. Dr. Jackson performed a surgical decompression and disc replacement in May 2007, which provided a "fair amount of improvement of her cervical pain and radicular symptomatology." [AR 919]. However, plaintiff subsequently was attacked by a dog, resulting in "extensive bites to her arms," and nerve damage in her arms and hands. [AR 919]. Dr. Jackson noted that plaintiff's use of narcotic pain medication would "likely cause impaired cognitive function [and] memory," as well as fatigue. [AR 920]. Dr. Jackson opined that plaintiff's symptoms had been present for seven or eight years, and he "suspect[ed] she would have a hard time maintaining any type of job with her history of chronic pain, disability, [and] pain medication consumption." [AR 920]. Dr. Jackson also completed a questionnaire in November 2010 indicating that plaintiff had limitations similar to those assessed by Dr. Ali, except that Dr. Jackson assessed only minimal upper extremity limitations. [AR 922-929]. Dr. Jackson opined that plaintiff could perform the lifting and carrying requirements of light work, but could sit no only three hours in an eight-hour day a day, stand or walk one or two hours in an-eight hour day, and would need to change positions every thirty minutes. [AR 924-925]. Dr. Jackson also opined that plaintiff: (1) could tolerate little work stress;

(2) would frequently experience symptom-based interference with attention and concentration; (3) exhibited symptoms and functional limitations that were "reasonably consistent" with her physical and mental impairments; (4) was likely to be absent more than three times a month; and (5) was not a malingerer. [AR 927-928].

The ALJ said that he gave the greatest weight to the opinion of Dr. Ostrow, a medical expert who testified during the administrative hearing. [See AR 23]. The ALJ said that he found Dr. Ali's treating source opinions "partially persuasive," in that "the lifting and postural limitations are supported by the objective and clinical findings." [AR 24]. The ALJ rejected the remaining limitations assessed by Dr. Ali. [AR 24]. The ALJ referred to plaintiff's neurosurgical treatment records but did not mention Dr. Jackson by name or discuss Dr. Jackson's November 2010 opinion. [AR 22].

In general, "[t]he opinions of treating doctors should be given more weight than the opinions of doctors who do not treat the claimant." Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)); see Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). A treating physician's opinion is entitled to greater weight than those of examining or non-examining physicians because "treating physicians are employed to cure and thus have a greater opportunity to know and observe the patient as an individual . . . ." Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001) (quoting Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996) and citing Social Security Ruling ("SSR") 96-2p, 1996 WL 374188); see 20 C.F.R. §§ 404.1502, 404.1527(d)(2), 416.902, 416.927(d)(2).

If a treating source opinion is uncontroverted, the ALJ must provide clear and convincing reasons, supported by substantial evidence in the record, for rejecting it. If contradicted by that of another doctor, a treating or examining source opinion may be rejected for specific and legitimate reasons that are based on substantial evidence in the record. Orn, 495 F.3d at 632; ...


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