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Rodolfo Primero v. Michael J. Astrue

January 31, 2013


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 supplemental security income benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

The parties are familiar with the procedural facts, which are summarized in the Joint Stipulation. [See JS 2]. Plaintiff alleges that he became disabled on July 1, 2006 at the age of 37 due to back and leg pain from a work-related low back injury. [Administrative Record ("AR") 33, 51-54, 118-124, 160-161]. In a May 24, 2011 written hearing decision that constitutes the final decision of the Commissioner, an administrative law judge ("ALJ") found that plaintiff had a severe back impairment that restricted him to light work and precluded performance of his past relevant work, but that his residual functional capacity did not preclude performance of alternative work available in significant numbers in the national economy. [AR 28-34].

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. 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)).


Treating source opinion

Plaintiff contends that the ALJ failed to articulate specific, legitimate reasons based on substantial evidence for rejecting the opinion of plaintiff's workers' compensation treating orthopedic surgeon, John Carr, M.D.

Plaintiff testified that he suffered a back injury in June 2000 during a work-related assault. [AR 51-52, 312-313]. He received treatment at Kaiser Permanente, where his diagnoses included disc herniation, sciatica, low back strain, and acute right L5 radiculopathy. He was prescribed physical therapy and medications, including Soma*fn1 , Vicodin*fn2 , and Naprosyn*fn3 . The possibility that plaintiff might need surgical decompression was noted. Plaintiff was advised to remain off work for a period of time and received state disability benefits. He resumed working in 2002 and continued to do so until his alleged onset of disability in July 2006. [AR 51-52, 125-141, 184, 299, 312-313, 252-283].

Plaintiff initially sought treatment from Dr. Carr in September 2000 for exacerbation of his symptoms. Dr. Carr conducted an examination and ordered an MRI, which showed "large disc herniation" at L5-S1 and S1 nerve root compression. [AR 301, 319-320]. Plaintiff returned to Dr. Carr for follow-up in February 2001. [AR 298-304, 312-321]. Dr. Carr diagnosed plaintiff with "chronic musculoligamentous sprain of the lumbosacral spine with associated 1.2 centimeter right paracentral disc herniation of the extrusion variety, with inferior extension displacing the right S1 nerve root" and "clinical possible right pyriformis syndrome." [AR 301]. He prescribed a course of physical therapy, chiropractic treatment, and Vicodin and Soma for pain. [AR 299, 301-302, 315]. Dr. Carr concluded that plaintiff had reached "maximum improvement from conservative treatment" in Feburary 2001 and therefore classified plaintiff's condition as "permanent and stationary."*fn4 [AR 301-302]. Dr. Carr opined that plaintiff was a candidate for laminectomy surgery and therefore requested-but did not receive-authorization to refer plaintiff to a neurosurgeon [AR 202, 300].

The ALJ stated that "the record does not include any treatment notes or medical evidence from 2002 until the claimant sought care again in December of 2008" from Dr. Carr, but that is incorrect. [AR 31]. Workers' compensation reports in the record indicate that plaintiff received follow-up treatment from Dr. Carr for his lumbar spine condition in June 2003, March 2005, May 2006, February 2008, and August 2008. [AR 200-228].

Plaintiff returned to Dr. Carr in June 2003 for exacerbation of his lumbar symptoms. [AR 200-211]. Dr. Carr's diagnoses and opinion were unchanged. He noted that plaintiff wished to "temporize with respect to undergoing" a laminectomy. [AR 204]. He prescribed Soma and Feldene*fn5 for pain, and Zantac (ranitidine) to prevent gastritis. [AR 204]. Dr. Carr opined that plaintiff had a "lumbosacral spine disability precluding substantial work activities and, in addition, prolonged sitting and prolonged standing." [AR 204].

Plaintiff returned to Dr. Carr on May 30, 2006. Dr. Carr said that he had last seen plaintiff in March 2005, but there is no corresponding medical report in the record. Dr. Carr also noted that plaintiff had settled his workers' compensation case with a provision for future medical care. [AR 216-218]. Dr. Carr's diagnoses and ...

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