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Reynolds v. Colvin

United States District Court, Ninth Circuit

December 9, 2013

CAROLYN W. COLVIN[1], Acting Commissioner of the Social Security Administration, Defendant.


ANDREW J. WISTRICH, 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 disability insurance benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

Plaintiff, then aged 50, filed her application for benefits on May 12, 2009, alleging that she became disabled on January 15, 2008. [JS 2; Administrative Record ("AR") 8, 10, 32]. Plaintiff's application was denied initially and upon reconsideration. [JS 2; AR 34-38, 42-46]. Plaintiff requested an administrative hearing, which was conducted before an administrative law judge (the "ALJ") on January 5, 2011. [AR 21]. Plaintiff was represented by counsel during the hearing and testified on her own behalf. [AR 21-31]. Testimony also was received from a vocational expert. [AR 30-31]. Because plaintiff's counsel submitted additional medical evidence during the hearing, the ALJ left the record open and instructed counsel to file a supplemental brief summarizing the evidence. [AR 29-31]. Counsel for plaintiff filed the requested brief [AR 156-157], and in a written hearing decision that constitutes the Commissioner's final decision in this matter, the ALJ found that plaintiff had severe impairments consisting of carpal tunnel syndrome bilaterally, bilateral carpal tunnel release in 2000/2001, chronic back pain, and lumbar fusion. [AR 10, 12]. The ALJ further found that plaintiff retained the residual functional capacity ("RFC") to perform light work. [AR 10-11]. Taking into consideration her subjective complaints, which the ALJ found partially credible, the ALJ found plaintiff was able to perform her past relevant work as a clerical worker. [AR 13-14]. Therefore, the ALJ concluded that plaintiff was not disabled at any time from January 15, 2008, her alleged onset date, through December 31, 2008, her date last insured. [AR 14].

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, Soc. 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, Soc. Sec. Admin. , 169 F.3d 595, 599 (9th Cir. 1999)).

Statement of Disputed Issues

The disputed issues are whether the ALJ: (1) properly considered plaintiff's treating physician's opinion; (2) should have obtained vocational expert testimony to support his finding that plaintiff could perform her past relevant work; and (3) made a properly supported credibility finding. [JS 2-3].


Treating "physician's" opinion

Plaintiff contends that the ALJ erred in evaluating the opinion of her "treating physician, " James Lauerman ("Lauerman"). [JS 3-10].

In plaintiff's supplemental brief to the ALJ, which is included in the record, plaintiff's hearing counsel implied that Lauerman was a physician by referring to him as plaintiff's"treating physician." [AR 156-157.] The ALJ referred to Lauerman as "James Lauerman, M.D." and "Dr. Lauerman." [AR 13]. In plaintiff's portion of the joint stipulation, plaintiff's current counsel, referring to Lauerman, frames the issue as whether the ALJ properly considered plaintiff's treating "physician's" opinion. [JS 2-3, 5]. Defendant also refers to Lauerman as a doctor in the joint stipulation. [JS 11-13].

Elsewhere in plaintiff's portion of the joint stipulation, however, plaintiff's counsel describes Lauerman as a physician's assistant. [JS 5-7]. That is consistent with documentary evidence in the record. [See AR 358 (stamp and signature of Lauerman identifying himself as a physician's assistant)].

The distinction between a physician and a physician's assistant is important because the latter is not an "acceptable medical source" within the meaning of the regulations. See 20 C.F.R. §§ 404.1513(a), 416.913(a). Only licensed physicians, and certain other qualified specialists (licensed or certified psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language pathologists) are considered "[a]cceptable medical sources." 20 C.F.R. § 404.1513(a). The ALJ may consider information in the record from "other sources" (that is, sources other than an "acceptable medical source"), but ordinarily is not required to give the information that same weight as information from an acceptable medical source. See 20 C.F.R. §§ 404.1513(d), 416.913(d) (defining an "acceptable medical source, " and explaining that information from "other sources" also may be considered); Gomez v. Chater , 74 F.3d 967, 970-971 (9th Cir.) (holding that the regulations permit the Commissioner to give "less weight" to opinions from "other sources"), cert. denied, 519 U.S. 881 (1996); see generally Social Security Ruling ...

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