Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Vivian v. Commissioner of Social Security

United States District Court, E.D. California

April 17, 2017

GLEN EARL VIVIAN Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff Glen Earl Vivian seeks judicial review of a final decision by the Commissioner of Social Security (“Commissioner”) denying plaintiff's application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“Act”).[1] In his motion for summary judgment, plaintiff principally contends that the Commissioner erred by finding that plaintiff was not disabled from January 1, 2009, plaintiff's alleged disability onset date, through December 31, 2011, plaintiff's date last insured. (ECF No. 15.) The Commissioner opposed plaintiff's motion and filed a cross-motion for summary judgment. (ECF No. 19.) Thereafter, plaintiff filed a reply brief. (ECF No. 20.)

         After carefully considering the record and the parties' briefing, the court DENIES plaintiff's motion for summary judgment, GRANTS the Commissioner's cross-motion for summary judgment, and AFFIRMS the Commissioner's final decision.

         I. BACKGROUND

         Plaintiff was born on February 22, 1962; attended 12 years of education, but did not graduate high school or obtain a GED; can communicate in English; and previously worked as a maintenance worker and a painter. (Administrative Transcript (“AT”) 23, 43-44, 71.)[2] On February 28, 2011, plaintiff applied for DIB, alleging that his disability began on January 1, 2009, and that he was disabled due to problems with: both knees; a crushed right thumb; arthritis; his back and neck; his wrist; stress; his hip; his elbows; and his feet. (AT 14, 187, 221.) After plaintiff's application was denied initially and on reconsideration, an administrative law judge (“ALJ”) conducted three hearings on February 27, 2013; August 28, 2013; and March 12, 2014. (AT 40-66, 67-78, 79-86.)[3] The ALJ subsequently issued a decision dated March 31, 2014, determining that plaintiff had not been under a disability, as defined in the Act, from January 1, 2009, plaintiff's alleged disability onset date, through December 31, 2011, plaintiff's date last insured. (AT 14-26.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on September 11, 2015. (AT 5-7.) After receiving an extension of time from the Appeals Council to seek federal court review (AT 1-2), plaintiff then filed this action on February 4, 2016, to obtain judicial review of the Commissioner's final decision. (ECF No. 1.)

         II. ISSUES PRESENTED

         On appeal, plaintiff raises the following issues: (1) whether the ALJ improperly rejected the opinion of plaintiff's treating physician, Dr. Uppal; (2) whether the ALJ erred in not finding plaintiff's right wrist pain and thoracic spine impairment to be severe impairments at step two; (3) whether the ALJ failed to make a proper step three determination; (4) whether the ALJ improperly discounted plaintiff's credibility; and (5) whether the ALJ's RFC was without substantial evidence support.[4]

         III. LEGAL STANDARD

         The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citation omitted). “The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

         IV. DISCUSSION

         Summary of the ALJ's Findings

         The ALJ evaluated plaintiff's entitlement to DIB pursuant to the Commissioner's standard five-step analytical framework.[5] As an initial matter, the ALJ determined that plaintiff met the insured status requirements of the Act for purposes of DIB through December 31, 2011. (AT 16.) At the first step, the ALJ concluded that plaintiff had not engaged in substantial gainful activity from January 1, 2009, his alleged disability onset date, through December 31, 2011, his date last insured. (Id.) At step two, the ALJ found that plaintiff had the following severe impairments through the date last insured: degenerative disc disease of the lumbar and cervical spine. (Id.) However, at step three, the ALJ determined that, through the date last insured, plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AT 17.)

         Before proceeding to step four, the ALJ assessed plaintiff's residual functional capacity (“RFC”), finding that, through the date last insured, plaintiff could perform light work as defined in 20 C.F.R. § 404.1567(b) except with brief changes in position. (AT 18.) At step four, the ALJ determined that plaintiff was unable to perform any past relevant work through the date last insured. (AT 23.) However, at step five the ALJ found that, in light of plaintiff's age, education, work experience, and RFC, and based on the VE's testimony, there were jobs that existed in significant numbers in the national economy that plaintiff could have performed through the date last insured. (AT 24.)

         Thus, the ALJ concluded that plaintiff had not been under a disability, as defined in the Act, from January 1, 2009, plaintiff's alleged disability onset date, through December 31, 2011, plaintiff's date last insured. (AT 25.)

         Plaintiff's Substantive Challenges to the Commissioner's Determinations

         Whether the ALJ improperly rejected the opinion of plaintiff's treating physician, Dr. Uppal

         The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally speaking, a treating physician's opinion carries more weight than an examining physician's opinion, and an examining physician's opinion carries more weight than a non-examining physician's opinion. Holohan, 246 F.3d at 1202.

         To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for “clear and convincing” reasons. Lester, 81 F.3d at 830-31. In contrast, a contradicted opinion of a treating or examining professional may be rejected for “specific and legitimate” reasons. Id. at 830. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by a supported examining professional's opinion (supported by different independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The regulations require the ALJ to weigh the contradicted treating physician opinion, Edlund, 253 F.3d at 1157, [6] except that the ALJ in any event need not give it any weight if it is conclusory and supported by minimal clinical findings. Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (treating physician's conclusory, minimally supported opinion rejected); see also Magallanes, 881 F.2d at 751. The opinion of a non-examining professional, by itself, is insufficient to reject the opinion of a treating or examining professional. Lester, 81 F.3d at 831.

         On January 6, 2012, just after plaintiff's date last insured, plaintiff's treating physician, Dr. Surinder Uppal, issued a one-page letter noting that plaintiff had degenerative disc disease of the spine (cervical, thoracic, and lumbosacral) and right thumb, with bilateral knee problems, and had become “totally disabled.” (AT 490.) Dr. Uppal stated:

He is not able to do any lifting, pushing, pulling, can not [sic] lift more than 20 pounds of weight, can not [sic] do much kneeling, crouching, over reaching [sic] etc. Can not [sic] do walking at anymore [sic] than half a block at a time, can not [sic] do any running, so he has become totally disabled but otherwise, he is mentally completely clear and he can take care of himself for his personal needs. Directions are good, speech is good, hearing is good.

(Id.)

         Because Dr. Uppal's opinion was contradicted by other medical opinions in the record, the ALJ was required to provide specific and legitimate reasons for discounting Dr. Uppal's opinion.

         As an initial matter, the ALJ reasonably gave Dr. Uppal's January 6, 2012 opinion little weight, because it is conclusory, provides little support for the extreme limitations assessed, and appears to rely significantly on plaintiff's subjective complaints, which the ALJ properly found less than credible for the reasons discussed below. (AT 23.) Indeed, even plaintiff himself admitted that he could walk more than half a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.