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Moreno v. Commissioner of Social Security Administration

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

April 16, 2014

RIGOBERTO MORENO, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

MEMORANDUM OPINION AND ORDER

VICTOR B. KENTON, 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 benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. 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 the Joint Stipulation ("JS"), and the Commissioner has filed the certified Administrative Record ("AR").

Plaintiff raises the following issues:

1. Whether the Administrative Law Judge ("ALJ") failed to properly consider the opinion of Dr. Rick Pospisil;
2. Whether the ALJ failed to properly consider radiculopathy of the lower extremities;
3. Whether the ALJ improperly applied the Medical-Vocational Guidelines;
4. Whether the ALJ committed legal error in failing to properly consider Plaintiff's testimony; and
5. Whether the ALJ failed to properly consider Plaintiff's ability to read and write English.

(JS at 2-3.)

This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that for the reasons set forth, the decision of the Commissioner must be reversed and the matter remanded.

I

THE ALJ PROPERLY CONSIDERED THE CONSULTING OPINION OF DR. POSPISIL

In Plaintiff's first issue, he contends the ALJ failed to properly consider the opinion of Dr. Rick Pospisil. Initially, the Court first notes that Plaintiff mischaracterizes Dr. Pospisil as a treating physician. (See JS at 4.) Dr. Pospisil performed an examination and provided what he denominated to be "consulting physician's evaluation and report under the future medical." (AR 777.) Dr. Pospisil evaluated Plaintiff once, on May 20, 2009 "for the purpose of consultation under future medical." (AR 778.) Consequently, the reference by both parties to the law concerning the opinion of treating physicians is misplaced. Nevertheless, as discussed by the Ninth Circuit in Lester v. Chater , 81 F.3d 821, 829-830 (9th Cir. 1995), where the opinion of a consulting physician is contradicted by the opinions of other examining physicians, then that opinion may only be rejected for "specific and legitimate reasons that are supported by substantial evidence in the record."

It is the ALJ's duty to resolve conflicts in medical testimony by analyzing the evidence presented in the record. Thus, the Court's focus here is whether the ALJ provided specific and legitimate reasons supported by the record for rejecting the opinions of Dr. Pospisil.

In his Decision (AR 17-27), the ALJ summarized the opinions of various examining and non-examining physicians. The discussion as to Dr. Pospisil is somewhat extensive. After reviewing Dr. Pospisil's assessed functional limitations, the ALJ stated he "found no significant abnormalities, functional limitations, and diagnoses, as either the conditions mentioned were stable and/or well controlled." [AR 24, sic.]

Plaintiff points out that the ALJ utilized the same or a similar expression to describe the opinions of various physicians whose reports are contained in the record. Dr. Pospisil opined that Plaintiff would miss more than three days of work per month (AR 788), which the testifying vocational ...


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