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Franco v. Colvin

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

September 8, 2014

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 Supplemental Security Income application. 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 plaintiff and the defendant have filed their pleadings. They have also filed Briefs (individually "Plaintiff's Brief" and "Defendant's Brief"), and the defendant has filed a certified Administrative Record. After reviewing the matter, the Court concludes that the Decision of the Commissioner should be affirmed.


Plaintiff Benny Ralph Franco filed an application for supplemental security income under Title II of the Social Security Act, alleging disability beginning January 18, 2008. (See Administrative Record ["AR"] 13; 161-164). The Commissioner initially denied the application on October 27, 2010, and again upon reconsideration on February 3, 2011. Thereafter, plaintiff filed a written request for hearing on February 14, 2011. On September 26, 2012, the Administrative Law Judge ("ALJ") issued an Unfavorable Decision, finding that Franco is not disabled within the meaning of the Social Security Act. (See AR 49-50).

Plaintiff challenges the ALJ's Decision denying disability benefits. Plaintiff alleges the ALJ erred in (1) failing to give appropriate weight to plaintiff's examining physician and the non-examining physician, and (2) failing to properly consider plaintiff's own testimony about the symptoms and pain resulting from his alleged disabilities. For the reasons discussed below, the Court concludes that both of the plaintiff's claims are without merit.



Plaintiff asserts that the ALJ failed to give appropriate weight to the testimony of the examining physician. Specifically, he maintains, the ALJ erred by giving more weight to the non-examining physician's testimony. Defendant argues that the ALJ properly weighed the medical evidence and gave specific and legitimate reasons required for rejecting an examining physician's testimony in favor of a non-examining physician.

It is well settled that an examining physician's opinion is entitled to greater weight than that of a non-examining physician. See Lester v. Chater , 81 F.3d 821, 830 (9th Cir. 1995), citing Pitzer v. Sullivan , 908 F.2d 502, 506 (9th Cir. 1990) and Gallant v. Heckler , 753 F.2d 1450 (9th Cir. 1984). As is the case with the opinion of a treating physician, the opinion of an examining physician, if contradicted a non-examining physician, can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the record. See Lester , 81 F.3d at 830-831, citing Andrews v. Shalala , 53 F.3d 1035, 1043 (9th Cir. 1995). The weight given to a non-examining physician's opinion depends on whether it is supported by sufficient medical data and is consistent with other evidence in the records. 20 C.F.R. § 404.1527 (2004). The opinion of a non-examining physician alone does not constitute substantial evidence that justifies rejection of an examining physician's testimony. See Pitzer , 908 F.2d at 506 n. 4; Gallant, supra 753 F.2d at 1456.

On October 7, 2010, plaintiff underwent a complete consultative psychiatric evaluation performed by an examining physician, Dr. David Bedrin. The ALJ's findings concerning Dr. Bedrin's evaluations in relevant part were as follows:

Mental status examination revealed that the claimant had mild impairment in recent memory and immediate recall; he had below average intellect; and he could not complete serial threes (Ex. B14F, p. 3). Based upon his examination of the claimant, Dr. Bedrin opined that the claimant had major depressive disorder; panic disorder without agoraphobia; and history of alcohol and methamphetamine, in remission (Ex. B14F, p. 4). He assessed the claimant with a Global Assessment Functioning score of 57 (Ex. B14F, p. 5). Dr. Bedrin opined that the claimant had no impairment in the following areas: his ability to relate and interact with supervisors, coworkers, and the public; his ability to understand and remember; his ability to maintain concentration and attention; and his ability to withstand the stress and pressures associated with employment (Ex. B14F, p. 5). He recorded that the claimant was able to follow simple one and two-step job instructions (Ex. B14F, p. 5).

(See AR 15).

In giving greater weight to the non-examining State agency mental medical consultants (at both the initial and reconsideration levels), the ALJ stated the following:

I have read and considered the GAF scores... this GAF score is of limited evidentiary value. These subjectively assessed score reveals [sic] only a snapshot of impaired and improved behavior. I give more weight to the objective details and chronology of the record... I give great weight to the opinions of the State agency medical consultants... [they] opined that the claimant had no more than mild limitation in any functional domain (Ex. 16F, p. 9). This opinion is consistent with the evidence, which shows the claimant has never been hospitalized in connection with his mental impairments and he does not obtain ongoing treatments for his impairments. I give some weight to the opinions of the psychiatric consultative examiner, Dr. Bedrin (Ex. B14F). [His] opinion was not completely consistent with the totality of the medical evidence. During the consultative examination, the claimant reported that his mood was very good; he recalled two out of three objects after five minutes; he was able to perform serial threes with only one mistake; and he denied having hallucinations (Ex. B14F, pp. 2-3). I decline ...

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