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Anthony Ridio v. Carolyn W. Colvin

April 19, 2013

ANTHONY RIDIO, PLAINTIFF,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY,*FN1 DEFENDANT.



The opinion of the court was delivered by: Jean Rosenbluth U.S. Magistrate Judge

I. PROCEEDINGS

MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS

Plaintiff seeks review of the Commissioner's final decision denying his application for Social Security disability insurance benefits ("DIB"). The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). This matter is before the Court on the parties' Joint Stipulation, filed November 5, 2012, which the Court has taken under submission without oral argument. For the reasons stated below, the Commissioner's decision is reversed and this matter is remanded for further proceedings.

II. BACKGROUND

Plaintiff was born on June 24, 1945. (Administrative Record ("AR") 42.) He attended several years of college but did not graduate. (AR 42-43, 194.) Plaintiff had worked for about 30 years as a "literary intellectual properties manager" and producer in the film industry and later worked for about three years as a salesman and leasing agent at a car dealership. (AR 43, 45, 137-39.) Plaintiff stopped working after he was injured in a car accident during a test drive with a customer on July 2, 2005 (AR 44-45, 278), when Plaintiff was 60 years old.

On August 8, 2008, Plaintiff filed an application for DIB, alleging a disability onset date of July 1, 2005.*fn2 (AR 61, 119-22, 125-127.) After Plaintiff's application was denied, he requested a hearing before an Administrative Law Judge ("ALJ"). (AR 79-81.) A hearing was held on September 2, 2010, at which Plaintiff, who was represented by counsel, testified, as did a vocational expert. (AR 39-59.) On October 7, 2010, the ALJ issued a written decision finding Plaintiff not disabled. (AR 15-27.) On November 17, 2010, Plaintiff requested review of the ALJ's decision. (AR 116-18.) On November 10, 2011, after considering additional evidence submitted by Plaintiff, the Appeals Council denied his request for review. (AR 1-5.) This action followed.

III. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free of legal error and supported by substantial evidence based on the record as a whole. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971); 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, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla but less than a preponderance. Lingenfelter, 504

F.3d at 1035 (citing 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 reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for that of the Commissioner. Id. at 720-21.

IV. THE EVALUATION OF DISABILITY

People are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted, or is expected to last, for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

A. The Five-Step Evaluation Process

The ALJ follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim must be denied. § 404.1520(a)(4)(i). If the claimant is not engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting his ability to do basic work activities; if not, the claimant is not disabled and the claim must be denied. § 404.1520(a)(4)(ii). If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. § 404.1520(a)(4)(iii). If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient residual functional capacity ("RFC")*fn3 to perform his past work; if so, the claimant is not disabled and the claim must be denied. § 404.1520(a)(4)(iv). The claimant has the burden of proving that he is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets that burden, a prima facie case of disability is established. Id. If that happens or if the claimant has no past relevant work, the Commissioner then bears the burden of establishing that the claimant is not disabled because he can perform other substantial gainful work available in the national economy. § 404.1520(a)(4)(v). That determination comprises the fifth and final step in the sequential analysis. § 404.1520; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.

B. The ALJ's Application of the Five-Step Process

At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since July 1, 2005. (AR 17.) At step two, the ALJ concluded that Plaintiff had the severe impairments of cervical and lumbar strain. (Id.) At step three, the ALJ determined that Plaintiff's impairments did not meet or equal any of the impairments in the Listing. (Id.) At step four, the ALJ found that Plaintiff had the RFC to perform "medium work" with the limitation that Plaintiff could only occasionally perform postural activities and was "mildly limited" in his ability to understand and remember tasks, sustain concentration and persistence, interact with the general public, and adapt to workplace change. (AR 17-18.) The ALJ concluded that Plaintiff could perform his past relevant work as a car salesman as it was generally performed.*fn4 (AR 25-26.) Based on the VE's testimony, the ALJ also found that Plaintiff could perform other medium- and light-work jobs that existed in the national economy. (AR 26.) Accordingly, the ALJ determined that Plaintiff was not disabled. (AR 27.)

V. RELEVANT FACTS

On July 2, 2005, Plaintiff was injured during a customer's test drive of a car he was attempting to sell. (AR 271, 278, 290.) When paramedics arrived, Plaintiff was "walking around on scene" but complained of head, neck, and shoulder pain. (AR 278.) At the hospital, an x-ray of Plaintiff's skull revealed no significant skeletal abnormalities. (AR 287.) An x-ray of Plaintiff's cervical spine showed "[m]oderate C5-6 cervical spondylosis" and "[p]ossible left focal carotid vascular calcification." (AR 288.) X-rays of his thoracic spine showed "[m]ild lower thoracic bridging osteophytosis." (AR 289.) Plaintiff was prescribed Vicodin, Anaprox, and Flexeril and was released the same day.*fn5 (AR 273-75.)

Sometime thereafter, Plaintiff filed a worker's compensation claim concerning the injuries he received from the car accident. On October 27, 2005, Plaintiff underwent a lumbar-spine MRI at the request of his chiropractor. (AR 361-66.) It showed (1) disc desiccation and decreased disc height at L1 to L2, with a

3.5-millimeter disc protrusion that produced mild spinal-canal narrowing; (2) a 3.5-millimeter disc protrusion at L2 to L3, with bilateral facet arthropathy, mild to moderate spinal-canal narrowing, mild to moderate bilateral neuroforaminal encroachment, and encroachment on the L2 exiting nerve roots; (3) disc desiccation and decreased disc height at L3 to L4, with a 3.5-millimeter disc protrusion, bilateral facet arthropathy, moderate spinal-canal narrowing, moderate to severe bilateral neuroforminal encroachment, and effacement of the L3 exiting nerve roots; (4) disc desiccation and decreased disc height at L4 to L5, with a 2.3-millimeter disc protrusion, bilateral facet arthropathy, mild to moderate spinal-canal narrowing, moderate to severe right and moderate left neuroforaminal encroachment, and impingement on the right and encroachment of the left L4 exiting nerve roots; (5) disc desiccation at L5 to S1, with a 2.6-millimeter central disc protrusion with bilateral facet arthropathy, mild to moderate spinal-canal narrowing, mild bilateral neuroforaminal encroachment, and encroachment on the L5 exiting nerve root; and (6) moderate hypolordosis of the lumbar spine, with left lateral convexity. (AR 361-62.)

VI. DISCUSSION

Plaintiff alleges that the ALJ erred in (1) rejecting the opinions of his treating and examining physicians and (2) discounting his subjective symptom testimony. (J. Stip. at 3.)

A. The ALJ's Evaluation of the Medical Evidence With regard to his physical impairments, Plaintiff contends that the ALJ erred in rejecting the opinions of examining physicians Lawrence M. Richman and Ray L. Craemer and treating physician Charles Schwarz. (J. Stip. at 4-8, 10-13, 20-21.) With regard to his mental impairments, Plaintiff contends that the ALJ erred in rejecting the opinion of an examining psychologist. (J. Stip. at 8-10, 21.)

1. Applicable law

Three types of physicians may offer opinions in social security cases: "(1) those who treat[ed] the claimant (treating physicians); (2) those who examine[d] but d[id] not treat the claimant (examining physicians); and (3) those who neither examine[d] nor treat[ed] the claimant (non-examining physicians)." Lester, 81 F.3d at 830. A treating physician's opinion is generally entitled to more weight than the opinion of a doctor who examined but did not treat the claimant, and an examining physician's opinion is generally entitled to more weight than that of a nonexamining physician. Id.

The opinions of treating physicians are generally afforded more weight than the opinions of nontreating physicians because treating physicians are employed to cure and have a greater opportunity to know and observe the claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). If a treating physician's opinion is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record, it should be given controlling weight. 20 C.F.R. ยง 404.1527(c)(2). If a treating physician's opinion is not given controlling weight, its weight is determined by length of the treatment relationship, frequency of examination, nature and extent of the treatment ...


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