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Karen Bullington v. Michael J. Astrue

March 19, 2013

KAREN BULLINGTON,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER ADOPTING REPORT

AND RECOMMENDATION; AND

ORDER ON CROSS MOTIONS

FOR SUMMARY JUDGMENT; AND

ORDER REMANDING CASE TO

ADMINISTRATIVE LAW JUDGE

After being found to suffer from fibromyalgia and various other ailments, Plaintiff Karen Bullington was denied social security disability benefits. She appealed from the denial. This matter was referred to Magistrate Judge Jan Adler for a report and recommendation, pursuant to 28 U.S.C. § 636(b). The parties filed cross motions for summary judgment, and on February 28, 2013, Judge Adler issued his report and recommendation (the "R&R"). The R&R recommended a determination that the administrative law judge (ALJ) did not err by failing to mention specifically Bullington's interstitial cystitis, and in her review of Dr. Manorma Reddy's opinions. The R&R found, however, that the ALJ did not satisfy her duty when rejecting the opinions of Bullington's treating physicians, improperly rejected psychologist Dr. Balson's opinion, and improperly rejected Bullington's subjective symptom testimony.

A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. Fed. R. Civ. P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Id. "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). The Court reviews de novo those portions of the R&R to which specific written objection is made. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). At the same time, the Court is not bound by the R&R, but may accept, reject, or modify it. See § 636(b)(1); Baldin v. Wells Fargo Bank, N.A., 2013 WL 796712, slip op. at *1 (D.Or., March 4, 2013) ("While the level of scrutiny under which I am required to review the [magistrate judge's findings and recommendations] depends on whether or not objections have been filed, in either case, I am free to accept, reject, or modify any part of the [findings and recommendations].")

Plaintiff filed no objections, but Defendant filed specific written objections. Defendant's objections address the R&R's finding of error as to the ALJ's consideration of the opinions of Drs. Riley and Schulman, the finding of error as to the ALJ's consideration of Dr. Balson's opinion, and the finding of error as to the ALJ's credibility finding.

Discussion of Defendant's Objections

Opinions of Drs. Riley and Schulman

Both Dr. Riley and Dr. Schulman are treating physicians. Defendant objects that the ALJ appropriately gave little weight to Dr. Schulman's assessment of Bullington's physical limitations because, Defendant argues, Dr. Schulman's assessment was inconsistent with other evidence in the record, including expert testimony, it was prepared for the purpose of assisting Bullington with disability benefits, and because it was inconsistent with the record as a whole, including Dr. Schulman's own treatment records.

A treating physician's opinion is usually entitled to a good deal of deference. Under 20 C.F.R. § 404.1527(d)(2) and 416.92(d)(2), the Commissioner must give a treating physician's opinion controlling weight, if it is well-supported by medically acceptable techniques and not inconsistent with substantial evidence in the record. Even when a treating physician's opinion is not given controlling weight, it is still entitled to deference. See Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Some of the reasons the ALJ has identified as reasons to discount Dr. Schulman's opinion are impermissible, and taken together they do not meet the required standard.

Where, as here, the opinion of a non-treating physician is based on clinical findings also considered by the treating physician, the ALJ may reject the treating physician only if she gives "specific, legitimate reasons for doing so that are based on substantial evidence in the record." Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citations omitted). Under these circumstances, the opinion of the non-treating physician is not "substantial evidence." Id. (holding that the opinion of a non-treating physician can be considered substantial evidence if that physician's opinion "is based on independent clinical findings that differ from those of the treating physician"). ...


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