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Acrey v. Colvin

United States District Court, C.D. California, Western Division

April 8, 2014

LARRY G. ACREY, Plaintiff,
CAROLYN W. COLVIN, Commissioner, Social Security Administration, Defendant.


STEPHEN J. HILLMAN, Magistrate Judge.

This matter is before the Court for review of the decision by the Commissioner of Social Security denying plaintiff's application for Disability Insurance Benefits. Pursuant to 28 U.S.C. § 636(c), the parties have consented that the case may be handled by the undersigned. The action arises under 42 U.S.C. § 405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The parties have filed their pleadings. The plaintiff has also filed a Brief[1], and the defendant has filed an Opposition Brief as well as the certified Administrative Record. After reviewing the matter, the Court concludes that the decision of the Commissioner should be reversed and remanded.


The plaintiff Larry G. Acrey has filed an application for Disability Insurance Benefits under Title II of the Social Security Act. (See Administrative Record ["AR"] 151-57). The Commissioner denied his application. (See AR 76-79). A hearing on the claim was conducted on March 23, 2012. (See AR 36-71). On April 4, 2012, the Administrative Law Judge ("ALJ") issued an unfavorable decision. (See AR 20-31). Upon Mr. Acrey's request to review the ALJ's decision, the Appeals Council denied review on June 26, 2013. (See AR 1-4).

Plaintiff makes three challenges to the ALJ's Decision. He challenges the ALJ's findings about the improper (1) weight given to examining neurologist Dr. Richard Gluckman, (2) evaluation of plaintiff's credibility, and (3) reliance on vocational expert's testimony. Because this Court finds the ALJ did not properly review Dr. Gluckman's opinion, it is unnecessary to address the propriety of the ALJ's review of the remaining two issues.


Carmickle v. Comm'r of Soc. Sec. Admin. , 533 F.3d 1155, 1164 (9th Cir. 2008) held in relevant part:

The ALJ is responsible for resolving conflicts in the medical record. Benton v. Barnhart , 331 F.3d 1030, 1040 (9th Cir.2003). Those physicians with the most significant clinical relationship with the claimant are generally entitled to more weight than those physicians with lesser relationships. Lester , 81 F.3d at 830[2]; 20 C.F.R. §§ 404.1527(d), 416.927(d). As such, the ALJ may only reject a treating or examining physician's uncontradicted medical opinion based on "clear and convincing reasons." Lester , 81 F.3d at 830-31. Where such an opinion is contradicted, however, it may be rejected for " specific and legitimate reasons that are supported by substantial evidence in the record." Id . (emphasis added)

Dr. Richard Gluckman is an examining physician and performed a Neurological Evaluation of Mr. Acrey. The ALJ's findings concerning Dr. Gluckman's evaluation are in relevant part but substantially excerpted below:

The claimant alleged significant fatigue, decreased strength in his arms and legs, memory problems, a burning sensation in his feet, balance issues and a limp.... Physical examination of the claimant revealed grossly intact cranial nerves and some give-way weakness of some distal muscles, although it was noted that it was not clear whether there was true weakness.... The claimant had hyperesthesia to his elbows and from his feet to his knees. There was evidence of glove and stocking neuropathy.... The claimant had decreased heel to shin testing with left greater than right, a slight decrease in tandem gait and increased tone in the lower extremities. Dr. Gluckman opined the claimant could sit for two to three hours and could stand or walk for less than one hour out of an eight-hour workday. He opined the claimant would have to get up and move around every ten to twenty minutes. Dr. Gluckman opined the claimant was incapable of working eight hours a day in his previous activities and was completely disabled. He opined the claimant constantly experienced pain, fatigue, or other symptoms sever enough to interfere with attention and concentration and the claimant was incapable of tolerating even low work stress.... Dr. Gluckman opined the claimant could lift and/or carry less than twenty pounds occasionally and five pounds frequently and would be absent more than three times a month due to his impairments.... He opined the claimant could not perform postural activities and could not work around heights.
(See AR 27-28) (emphasis added).

The ALJ gave Dr. Gluckman's opinion "little weight" and gave the following reasons:

Although Dr. Gluckman personally observed and examined the claimant, the functional limitations he assessed are inconsistent with the claimant's record as a whole. Additionally, his statement that the claimant was completely disabled has no probative value. As an opinion on an issue reserved to the Commissioner, this statement is not entitled to controlling weight and is not given special significance pursuant to 20 CFR 404.1527(e) and SSR 96-5. The undersigned has included limitations of occasional postural activities, no ladders, ropes or scaffolds and no work around heights, moving ...

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