The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge
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.
The parties are familiar with the procedural facts, which are summarized in the Joint Stipulation. [See JS 2]. In a November 12, 2010 written hearing decision that constitutes the final decision of the Commissioner, an administrative law judge ("ALJ") found that plaintiff has the severe impairment of degenerative disc disease of the lumbar spine. [Administrative Record ("AR") 11]. The ALJ further found that plaintiff retained the residual functional capacity ("RFC") to perform a full range of light work. [AR 11].
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. Social 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 Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)).
Plaintiff contends that the ALJ erred in failing to consider the opinion of his treating orthopedist, Mark Brown, M.D. [JS 2-3, 6-8].
Plaintiff saw Dr. Brown at the Orthopaedic Medical Group of Santa Ana, Inc. in Tustin, California from December 2000 through June 15, 2005, and in August 2007. [AR 183-198, 200-243, 280-307]. Dr. Brown summarized the background of plaintiff's injuries in various reports through the years. [See, e.g., AR 223-231, 281-283]. Plaintiff reported that while working for Quicksilver, he injured his back on March 18, 1998, September 9, 1999, October 13, 1999, and February 1, 2000 by pulling a pallet jack or by lifting heavy boxes. [AR 224]. Plaintiff said that he was terminated from Quicksilver in July 2000 for reasons unrelated to his back injuries. [AR 225].
Plaintiff was referred to Dr. Brown in December 2000 in connection with a workers' compensation claim. At plaintiff's initial examination on December 4, 2000, Dr. Brown concluded that plaintiff had "[l]umbar spine strain/sprain, rule out nerve root impingement." [AR 241]. He considered plaintiff "temporarily totally disabled"*fn1 and ordered an MRI. [AR 225, 241-242].
On January 2, 2001, the MRI revealed moderate spinal stenosis at L4-5 with anterior and posterior indentation on the thecal sac, and mild relative stenosis at L2-3. [AR 180-181, 225]. The MRI also revealed a three to four millimeter disc protrusion at L2-3, and a moderate thecal sac indentation at L4-5 related to a four millimeter posterior disc protrusion. [AR 180-181, 225].
Progress reports indicate that Dr. Brown then saw plaintiff and instructed him to remain off work on January 15, 2001 [AR 197], February 19, 2001 [AR 195], and March 26, 2001 [AR 193]. On April 27, 2001, Dr. Brown reviewed plaintiff's medical records and concluded that he "should remain off of work, and is considered to be Temporarily Totally Disabled." [AR 234]. Dr. Brown instructed plaintiff to return for a follow-up visit three days later. [AR 234]. Plaintiff returned on April 30, 2001 and reported increased pain. [AR 191]. Dr. Brown again instructed him to remain off work until June 6, 2001. [AR 191].
Upon examination on June 6, 2001, Dr. Brown noted that plaintiff had normal heel-to-toe gait without limping, and that he was not wearing a back support. [AR 226]. However, there was tenderness over the midline lumbosacral area and over L5-S1 bilaterally, and he concluded that plaintiff's low back pain complaints appeared consistent with the findings in the MRI study. [AR 225-227]. Dr. Brown diagnosed plaintiff with lumbar spine strain/sprain, and a "3-4 mm disc bulge at L2-3, causing moderate right neural foraminal stenosis and a 4 mm disc bulge at L4-5, causing moderate canal stenosis." [AR 227]. Because plaintiff continued to have substantial pain and his condition seemed to have plateaued in response to treatment, Dr. Brown rated plaintiff's disability status as ...