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Guillermina Garcia De Chavez v. Carolyn W. Colvin

March 14, 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"),*fn1 denying plaintiff's application for disability insurance benefits and supplemental security income ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

On December 10, 2008, plaintiff, aged 50, filed applications for disability insurance and SSI benefits alleging that she had been disabled since October 1, 2006. [JS 2; Administrative Record ("AR") 59-60, 151, 159].*fn2 In a November 9, 2010 written hearing decision that constitutes the final decision of the Commissioner, an administrative law judge ("ALJ") found that plaintiff had severe impairments consisting of rheumatoid arthritis, bilateral carpal tunnel syndrome, and fibromyalgia. [AR 17, 21]. The ALJ further found that plaintiff retained the residual functional capacity ("RFC") to perform less than a full range of light work. [AR 17]. Specifically, the ALJ determined that plaintiff can lift and carry ten pounds frequently and twenty pounds occasionally with frequent fine manipulation with her hands bilaterally. [AR 17]. Based on the testimony of a vocational expert, the ALJ concluded that plaintiff was not disabled because her RFC did not preclude her from performing her past relevant work as a hairstylist and manager of a beauty salon. [AR 20-21].

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)).


Medical opinion evidence

Plaintiff contends that the ALJ's evaluation of the medical evidence is not supported by substantial evidence because he improperly adopted the opinions of examining physician Khyber Zaffarkhan, D.O., and the state agency non-examining physicians in assessing plaintiff's RFC. [JS 4-6]. Plaintiff further maintains that the ALJ also failed to provide specific and legitimate reasons for rejecting the opinion of plaintiff's treating rheumatologist Joanne Kang, M.D. [JS 6-7].

The ALJ must provide clear and convincing reasons, supported by substantial evidence in the record, for rejecting an uncontroverted treating source opinion. 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. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Tonapetyan v. Halter, 242 F.3d 1144, 1148-1149 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830-831 (9th Cir. 1995). "The opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician." Lester, 81 F.3d at 831. On the other hand, "the findings of a nontreating, nonexamining physician can amount to substantial evidence, so long as other evidence in the record supports those findings." Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (per curiam), cert. denied, 519 U.S. 1113 (1997).

On February 7, 2009, plaintiff underwent a complete orthopedic consultation with Dr. Zaffarkhan at the Commissioner's request. [AR 216-221]. Dr. Zaffarkhan took a history and conducted an orthopedic evaluation, but did not review any medical records. [AR 216-220]. He diagnosed bilateral carpal tunnel syndrome and hypertensive urgency. [AR 220]. Dr. Zaffarkhan opined that plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently, and that she could frequently do fine manipulation with both hands. [AR 221].

On March 9, 2009, a nonexamining state agency physician completed a physical RFC assessment form and found plaintiff capable of light work. [AR 223-230]. This determination was affirmed by another nonexamining physician on May 5, 2009. [AR 231-232].

On August 20, 2010, Dr. Kang, plaintiff's treating physician, wrote the following on a prescription order: "[Patient] has a diagnosis of Rheumatoid arthritis. It would be very difficult for her to work as a hairdresser. Please consider permanent disability for Ms. Chavez." [AR 352].

In assessing plaintiff's RFC, the ALJ said that she gave "great weight" to Dr. Zaffarkhan's opinion and "weight" to the nonexamining physicians opinions. [AR 20]. She said that she gave "little weight" to Dr. Kang's "disability statement[.]" [AR 20]. Specifically, the ALJ determined that because Dr. Kang gave an opinion on an issue reserved to the Commissioner, her opinion was not entitled to controlling weight or any special significance. [AR 20]. Additionally, the ALJ concluded that Dr. Kang's statement was "not ...

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