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Cindy Pipkin v. Michael J. Astrue

February 13, 2013


The opinion of the court was delivered by: Marc L. Goldman United States Magistrate Judge


Plaintiff Cindy Pipkin seeks judicial review of the Commissioner's final decision denying her applications for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") benefits. For the reasons stated below, the decision of the Commissioner is affirmed and the matter is dismissed with prejudice.

I. Background

Plaintiff filed her DIB and SSI applications on April 23, 2009, alleging disability beginning January 1, 2009, due to bipolar disorder, major depression, agoraphobia and migraine headaches. (AR at 42-43, 108.) Plaintiff was born on May 7, 1959, and was 49 years old at the time she filed her applications for benefits. (Administrative Record ("AR") at 97.) She completed three years of college and has relevant work experience as a babysitter. (AR at 109, 113.)

Plaintiff's applications were denied initially on August 12, 2009, and upon reconsideration on October 20, 2009. (AR at 46-50, 51-55.) An administrative hearing was held on September 24, 2010, before Administrative Law Judge ("ALJ") F. Keith Varni. Plaintiff, represented by counsel, testified, as did Plaintiff's daughter. (AR at 20-41.)

On November 5, 2010, the ALJ issued an unfavorable decision. (AR at 9-17.) The ALJ found that the medical evidence established that Plaintiff suffered from the severe impairment of a mood disorder. (AR at 11.) The ALJ determined that Plaintiff's impairments did not meet, and were not medically equal to, one of the listed impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1. (Id.) The ALJ further found that Plaintiff retained the residual functional capacity ("RFC") to perform a full range of work at all exertional levels with the non-exertional limitation that she could not perform detailed work. (AR at 12.)

The ALJ determined that Plaintiff was capable of performing her past relevant work as a baby sitter. (AR at 16.) He also concluded, at Step Five of the sequential process, that Plaintiff was capable of performing other jobs in the national economy, and therefore Plaintiff was not disabled within the meaning of the Social Security Act. See 20 C.F.R. § 416.920(f). (AR at 27.)

On July 25, 2012, the Appeals Council denied review. (AR at 1-4.) Plaintiff timely commenced this action for judicial review. On February 1, 2013, the parties filed a Joint Stipulation ("Joint Stip.") of disputed facts and issues. Plaintiff contends that the ALJ erred by failing to: (1) properly consider the treating physician's opinion; (2) provide a complete and proper assessment of Plaintiff's RFC; (3) properly determine whether Plaintiff could perform her past relevant work as a babysitter; (4) obtain vocational expert ("VE") testimony; and (5) properly assess the lay witness testimony. (Joint Stip. at 3.) Plaintiff seeks reversal of the Commissioner's denial of her applications and payment of benefits or, in the alternative, remand for a new administrative hearing. (Joint Stip. at 26.) The Commissioner requests that the ALJ's decision be affirmed. (Joint Stip. at 26-27.)

II. Standard of Review

Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The Commissioner's or ALJ's decision must be upheld unless "the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can support either affirming or reversing the ALJ's conclusion," the reviewing court "may not substitute its judgment for that of the ALJ." Robbins, 466 F.3d at 882.

III. Discussion

A. The ALJ Gave Appropriate Weight to the Opinion of Plaintiff's Treating Physician

Plaintiff contends that the ALJ failed to give controlling weight to the opinion of her treating physician, Dr. Khushro B. Unwalla. (Joint Stip. at 3.) Plaintiff claims that the September 28, 2009 Mental Disorder Questionnaire Form and the February 1, 2010 Work Capacity Evaluation (Mental), both prepared by Dr. Unwalla, establish that she has bipolar disorder and marked limitations in the ability to perform a variety of work-related functions. (Id., citing AR at 276-280, 310-311.) For example, Dr. Unwalla opined that Plaintiff had marked limitations in nine work-related areas and extreme limitations in the ability to respond appropriately to changes in the work setting and the ability to set realistic goals or make plans independently of others. (AR at 310-311.)

An ALJ should generally accord greater probative weight to a treating physician's opinion than to opinions from non-treating sources. See 20 C.F.R. ยง 404.1527(d)(2). The ALJ must give specific and legitimate reasons for rejecting a treating physician's opinion in favor of a non-treating physician's contradictory opinion. Orn v. Astrue, 495 F.3d 625 (9th Cir. 2007); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). However, the ALJ need not accept the opinion of any medical source, including a treating medical source, "if that opinion is brief, conclusory, and inadequately supported by clinical findings." Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Tonapetyen v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). The factors to be considered by the adjudicator in determining the weight to give a medical opinion include: "[l]ength of the treatment relationship and the frequency of ...

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