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James Leon Dowdy v. Michael J. Astrue

January 31, 2013


The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge


Plaintiff filed a Complaint on July 19, 2011, seeking review of the denial of his application for supplemental security income ("SSI"). On August 18, 2011, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. The parties filed a Joint Stipulation on March 12, 2012, in which: plaintiff seeks an order reversing the Commissioner's decision and remanding this case for the payment of benefits or, alternatively, for further administrative proceedings; and the Commissioner requests that his decision be affirmed or, alternatively, remanded for further administrative proceedings.


On October 5, 2007, plaintiff filed an application for SSI. (Administrative Record ("A.R.") 12.) Plaintiff, who was born on April 23, 1962 (A.R. 22), claims to have been disabled since January 1, 2002*fn1 (A.R. 12), due to both mental and physical problems, including depression, paranoia, suicidal thoughts, hallucinations, obsessive compulsive disorder, drug dependency, mood swings, left knee replacement, inability to handle stress, and asthma. (A.R. 222.)

After the Commissioner denied plaintiff's claim initially and upon reconsideration, plaintiff requested a hearing. (A.R. 12.) On January 22, 2009, plaintiff, who was represented by an attorney, appeared and testified at an initial hearing before Administrative Law Judge Michael

D. Radensky (the "ALJ"). (A.R. 12, 29-59.) Vocational expert Troy Scott also testified. (A.R. 29-59.) However, plaintiff did not appear for the supplemental hearing held on February 18, 2010, because he was incarcerated. (A.R. 12, 60-82.) Appearing and testifying at that time were independent medical expert David Glassmire and vocational expert David Rinehart. (Id.) On April 2, 2012, the ALJ denied plaintiff's claim (A.R. 12-24), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 1-4). That decision is now at issue in this action.


The ALJ found that plaintiff has not engaged in substantial gainful activity since October 5, 2007, his application date (A.R. 14), and has the following severe impairments: "degenerative disc disease in the neck and back; degenerative joint disease in the left knee; mood disorder, not otherwise specified; anxiety disorder, not otherwise specified; [and] polysubstance abuse." (A.R. 15.) The ALJ found that plaintiff's impairments, including his substance abuse disorders, meet sections 12.04(c)(2) and 12.09 of 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. § 416.920(d)). (Id.)

The ALJ found that, even if plaintiff stopped abusing substances, his remaining limitations would constitute a severe impairment or combination of impairments. (A.R. 15.) However, the ALJ further found that plaintiff nonetheless would not have an impairment or combination of impairments that meets or medically equals any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. § 416.920(d)). (Id.)

After reviewing the record, and presuming that plaintiff had stopped his substance abuse, the ALJ determined plaintiff would have the residual functional capacity ("RFC") to perform light work as defined in 20 C.F.R. § 416.967(b). (A.R. 16.) Specifically, the ALJ found that plaintiff: could lift and/or carry 10 pounds frequently and 20 pounds occasionally; [plaintiff] could stand and/or walk 2 hours in an eight-hour workday, and sit for 6 hours in an eight-hour workday; he could occasionally balance, stoop, kneel, crouch, crawl, or climb ramps, stairs, ladders, ropes, or scaffolds; [he] could frequently, but not constantly, use his right hand; is limited to simple repetitive tasks; he is precluded from interacting with the public, but he is allowed only non-intense interaction with co-workers and supervisors; [plaintiff] is precluded from tasks requiring hypervigilance or fast paced work.


With those limitations, the ALJ concluded that plaintiff would be unable to perform his past relevant work. (A.R. 22.) Given plaintiff's*fn2 RFC, age, education, work experience, and the testimony of the*fn3 vocational expert, the ALJ found that plaintiff could perform a significant number of jobs in the national economy if he stopped his substance abuse. (Id.) Specifically, the ALJ noted that plaintiff could work as "an electronics worker, a sewing machine operator, and an addresser." (A.R. 23.) Accordingly, the ALJ concluded that, because plaintiff would not be disabled if he stopped his substance abuse, plaintiff's substance abuse disorder is a contributing factor material to the determination of disability under 20 C.F.R. § 416.935. (Id.)

Thus, the ALJ found that plaintiff has not been disabled within the meaning of the Social Security Act at any time from the date the application was filed through the date of his decision. (A.R. 23.)


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citation omitted). The "evidence must be more than a mere scintilla but not necessarily a preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). "While inferences from the record can constitute substantial evidence, only those 'reasonably drawn from the record' will suffice." Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted).

Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. 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)); see also Burch, 400 F.3d at 679.


Plaintiff claims that the ALJ: (1) improperly considered the relevant medical evidence; and (2) improperly discounted the credibility of plaintiff and his girlfriend. (Joint Stipulation ("Joint Stip.") at 4-12, 21-28.) Each of these claims lacks merit.

I. The ALJ Properly Considered The Medical Evidence In The Record.

It is the responsibility of the ALJ to analyze evidence and resolve conflicts in medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). In the hierarchy of physician opinions considered in assessing a social security claim, "[g]enerally, a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a reviewing physician's." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. § 416.927(d).

The opinions of treating physicians are entitled to the greatest weight, because the treating physician is hired to cure and has a better opportunity to observe the claimant. Magallanes, 881 F.2d at 751. When a treating physician's opinion is not contradicted by another physician, it may be rejected only for "clear and convincing" reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). When contradicted by another doctor, a treating physician's opinion may only be rejected if the ALJ provides "specific and legitimate" reasons supported by substantial evidence in the record. Id.

"The opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of . . . a treating physician." Lester, 81 F.3d at 831; see Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990)(finding that the nonexamining physician's opinion "with nothing more" did not constitute substantial evidence). However, "[w]here the opinion of the claimant's treating physician is contradicted, and the opinion of a nontreating source is based on independent clinical findings that differ from those of the treating physician, the opinion of the nontreating source may itself be substantial evidence." Andrews, 53 F.3d at 1041. Independent clinical findings include "(1) diagnoses that differ from those offered by another physician and that are supported by substantial evidence, or (2) findings based on objective medical tests that the treating physician has not herself considered." Orn, 495 F.3d at 632 (internal citations omitted).

Plaintiff alleges four sources of reversible error in the ALJ's treatment of the relevant medical evidence: (A) failure to properly consider the opinion of Nancy A. McCarthy, M.D., a treating physician;

(B) failure to properly consider the opinion of Shellee Pollard, a social worker; (C) failure to acknowledge plaintiff's use of a cane for ambulation; and (D) failure to comment on plaintiff's Global Assessment ...

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