United States District Court, E.D. California
SHARON L. BICKFORD, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM OPINION AND ORDER
M. KELLISON UNITED STATES MAGISTRATE JUDGE.
who is proceeding with retained counsel, brings this action
under 42 U.S.C. § 405(g) for judicial review of a final
decision of the Commissioner of Social Security. Pursuant to
the written consent of all parties, this case is before the
undersigned as the presiding judge for all purposes,
including entry of final judgment. See 28 U.S.C.
§ 636(c). Pending before the court are plaintiff's
motion for summary judgment (Doc. 16) and defendant's
cross-motion for summary judgment (Doc. 23).
applied for social security benefits on February 14, 2012. In
the application, plaintiff claims that disability began on
August 10, 2010. Plaintiff's claim was initially denied.
Following denial of reconsideration, plaintiff requested an
administrative hearing, which was held on September 10, 2013,
before Administrative Law Judge (“ALJ”) L. Kalei
Fong. In a January 27, 2014, decision, the ALJ concluded that
plaintiff is not disabled based on the following relevant
1. The claimant has the following severe impairment(s):
degenerative disc disease of the cervical and lumbar spine,
and degenerative joint disease of the bilateral shoulders;
2. The claimant does not have an impairment or combination of
impairments that meets or medically equals an impairment
listed in the regulations;
3. The claimant has the following residual functional
capacity: the claimant can perform light work; she can lift
and carry 10 pounds frequently and 20 pounds occasionally;
she can sit for 6 hours in an 8-hour day, with normal breaks;
she can stand and/or walk for 6 hours in an 8-hour day, with
normal breaks; she can frequently reach, push, and pull
bilaterally; she can occasionally perform postural
activities, except that she can frequently balance and kneel;
she can frequently work near unprotected heights and
vibrations; she can occasionally work near humidity and
wetness; she can never work near extreme cold or heat; and
she is unable to work around loud noise; and
4. Considering the claimant's age, education, work
experience, residual functional capacity, and the
Medical-Vocational Guidelines, there are jobs that exist in
significant numbers in the national economy that the claimant
the Appeals Council declined review on June 8, 2015, this
STANDARD OF REVIEW
court reviews the Commissioner's final decision to
determine whether it is: (1) based on proper legal standards;
and (2) supported by substantial evidence in the record as a
whole. See Tackett v. Apfel, 180 F.3d 1094, 1097
(9th Cir. 1999). “Substantial evidence” is more
than a mere scintilla, but less than a preponderance. See
Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). It
is “. . . such evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 402 (1971). The
record as a whole, including both the evidence that supports
and detracts from the Commissioner's conclusion, must be
considered and weighed. See Howard v. Heckler, 782
F.2d 1484, 1487 (9th Cir. 1986); Jones v. Heckler,
760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm
the Commissioner's decision simply by isolating a
specific quantum of supporting evidence. See Hammock v.
Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial
evidence supports the administrative findings, or if there is
conflicting evidence supporting a particular finding, the
finding of the Commissioner is conclusive. See Sprague v.
Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).
Therefore, where the evidence is susceptible to more than one
rational interpretation, one of which supports the
Commissioner's decision, the decision must be affirmed,
see Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.
2002), and may be set aside only if an improper legal
standard was applied in weighing the evidence, see
Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).
motion for summary judgment, plaintiff argues that the ALJ
improperly rejected the opinions of examining physician Dr.
Van Kirk. The weight given to medical opinions depends in
part on whether they are proffered by treating, examining, or
non-examining professionals. See Lester v. Chater,
81 F.3d 821, 830-31 (9th Cir. 1995). Ordinarily, more weight
is given to the opinion of a treating professional, who has a
greater opportunity to know and observe the patient as an
individual, than the opinion of a non-treating professional.
See id.; Smolen v. Chater, 80 F.3d 1273,
1285 (9th Cir. 1996); Winans v. Bowen, 853 F.2d 643,
647 (9th Cir. 1987). The least weight is given to the opinion
of a non-examining professional. See Pitzer v.
Sullivan, 908 F.2d 502, 506 & n.4 (9th Cir. 1990).
addition to considering its source, to evaluate whether the
Commissioner properly rejected a medical opinion the court
considers whether: (1) contradictory opinions are in the
record; and (2) clinical findings support the opinions. The
Commissioner may reject an uncontradicted opinion of a
treating or examining medical professional only for
“clear and convincing” reasons supported by
substantial evidence in the record. See Lester, 81
F.3d at 831. While a treating professional's opinion
generally is accorded superior weight, if it is contradicted
by an examining professional's opinion which is supported
by different independent clinical findings, the Commissioner
may resolve the conflict. See Andrews v. Shalala, 53
F.3d 1035, 1041 (9th Cir. 1995). A contradicted opinion of a
treating or examining professional may be rejected only for
“specific and legitimate” reasons supported by
substantial evidence. See Lester, 81 F.3d at 830.
This test is met if the Commissioner sets out a detailed and
thorough summary of the facts and conflicting clinical
evidence, states her interpretation of the evidence, and
makes a finding. See Magallanes v. Bowen, 881 F.2d
747, 751-55 (9th Cir. 1989). Absent specific and legitimate
reasons, the Commissioner must defer to the opinion of a
treating or examining professional. See Lester, 81
F.3d at 830-31. The opinion of a non-examining professional,
without other evidence, is ...