United States District Court, C.D. California
MEMORANDUM DECISION AND ORDER AFFIRMING
ROSENBLUTH U.S. Magistrate Judge
seeks review of the Commissioner's final decision denying
his applications for Social Security disability insurance
benefits (“DIB”) and supplemental security income
benefits (“SSI”). The parties consented to the
jurisdiction of the undersigned U.S. Magistrate Judge under
28 U.S.C. § 636(c). The matter is before the Court on
the parties' Joint Stipulation, filed November 3, 2016,
which the Court has taken under submission without oral
argument. For the reasons stated below, the
Commissioner's decision is affirmed.
was born in 1962. (Administrative Record (“AR”)
168.) He completed two years of college (AR 219) and worked
as an architectural draftsman, general laborer, and tutor (AR
January 17, 2013, Plaintiff filed an application for DIB and
on January 22 he filed one for SSI, alleging in each that he
had been unable to work since December 30, 2012 (AR 168,
170), because of a head injury, physical limitations,
anxiety, arthritis, and diabetes (AR 218). After his
applications were denied initially and on reconsideration (AR
73-74, 105-06), he requested a hearing before an
Administrative Law Judge (AR 127). A hearing was held on
September 21, 2015, at which Plaintiff, who was represented
by counsel, testified, as did a vocational expert. (AR
33-48.) In a written decision issued October 27, 2015, the
ALJ found Plaintiff not disabled. (AR 16-32.) Plaintiff
requested review from the Appeals Council, and on January 28,
2016, it denied review. (AR 1-6.) This action followed.
STANDARD OF REVIEW
42 U.S.C. § 405(g), a district court may review the
Commissioner's decision to deny benefits. The ALJ's
findings and decision should be upheld if they are free of
legal error and supported by substantial evidence based on
the record as a whole. See id.; Richardson v.
Perales, 402 U.S. 389, 401 (1971); Parra v.
Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial
evidence means such evidence as a reasonable person might
accept as adequate to support a conclusion.
Richardson, 402 U.S. at 401; Lingenfelter v.
Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more
than a scintilla but less than a preponderance.
Lingenfelter, 504 F.3d at 1035 (citing Robbins
v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)).
To determine whether substantial evidence supports a finding,
the reviewing court “must review the administrative
record as a whole, weighing both the evidence that supports
and the evidence that detracts from the Commissioner's
conclusion.” Reddick v. Chater, 157 F.3d 715,
720 (9th Cir. 1996). “If the evidence can reasonably
support either affirming or reversing, ” the reviewing
court “may not substitute its judgment” for the
Commissioner's. Id. at 720-21.
THE EVALUATION OF DISABILITY
are “disabled” for purposes of receiving Social
Security benefits if they are unable to engage in any
substantial gainful activity owing to a physical or mental
impairment that is expected to result in death or has lasted,
or is expected to last, for a continuous period of at least
12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v.
Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).
The Five-Step Evaluation Process
follows a five-step sequential evaluation process to assess
whether a claimant is disabled. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81
F.3d 821, 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996).
In the first step, the Commissioner must determine whether
the claimant is currently engaged in substantial gainful
activity; if so, the claimant is not disabled and the claim
must be denied. §§ 404.1520(a)(4)(I),
claimant is not engaged in substantial gainful activity, the
second step requires the Commissioner to determine whether
the claimant has a “severe” impairment or
combination of impairments significantly limiting his ability
to do basic work activities; if not, the claimant is not
disabled and his claim must be denied. §§
claimant has a “severe” impairment or combination
of impairments, the third step requires the Commissioner to
determine whether the impairment or combination of
impairments meets or equals an impairment in the Listing of
Impairments set forth at 20 C.F.R. part 404, subpart P,
appendix 1; if so, disability is conclusively presumed.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
claimant's impairment or combination of impairments does
not meet or equal an impairment in the Listing, the fourth
step requires the Commissioner to determine whether the
claimant has sufficient residual functional capacity
(“RFC”) to perform his past work; if so, he is not
disabled and the claim must be denied. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). The claimant has the
burden of proving he is unable to perform past relevant work.
Drouin, 966 F.2d at 1257. If the claimant meets that
burden, a prima facie case of disability is established.
happens or if the claimant has no past relevant work, the
Commissioner then bears the burden of establishing that the
claimant is not disabled because he can perform other
substantial gainful work available in the national economy.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v);
Drouin, 966 F.2d at 1257. That determination
comprises the fifth and final step in the sequential
analysis. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v);
Lester, 81 F.3d at 828 n.5; Drouin, 966
F.2d at 1257.
The ALJ's Application of the Five-Step Process
one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since December 30, 2012, the
alleged onset date. (AR 21.) At step two, he concluded that
Plaintiff had severe impairments of “status post remote
motorcycle accident in 1980; status post remote cardiac
arrest; status post fracture and reconstructive surgery of
right tibia; and anxiety disorders.” (Id.) At
step three, he determined that Plaintiff's impairments
did not meet or equal a listing. (AR 23.)
four, the ALJ found that Plaintiff had the RFC to perform
medium work, was able to lift and carry 25 pounds frequently
and 50 pounds occasionally, could sit and stand about six
hours in an eight-hour workday, and could perform “no
greater than simple routine tasks” with “no more
than occasional contact with the public and coworkers.”
on the VE's testimony, the ALJ concluded that Plaintiff
could not perform his past relevant work. (AR 26.) At step
five, he relied on the VE's testimony to find that given
Plaintiff's RFC for medium work “impeded by
additional limitations, ” he could perform two
“representative” medium, unskilled occupations in
the national economy: (1) “dishwasher,
” DOT 318.687-010, 1991 WL 672755, and (2)
“hand packager, ” DOT 920.587-018, 1991 WL
687916. (AR 26-27.) Accordingly, he found Plaintiff not
disabled. (AR 27.)
argues that the ALJ erred in (1) considering and evaluating
the opinion of Dr. Jason B. Miller and (2) assessing
Plaintiff's credibility. (See J. Stip. at 3.)
The ALJ Properly Assessed the Medical Evidence
contends that the ALJ failed to properly consider and
evaluate Dr. Miller's medical opinion, including that
Plaintiff would be “off task 30% or more of the
time.” (Id. at 3-7.) For the reasons discussed
below, remand is not warranted on this ground.
types of physicians may offer opinions in Social Security
cases: (1) those who directly treated the plaintiff, (2)
those who examined but did not treat the plaintiff, and (3)
those who did neither. Lester, 81 F.3d at 830. A
treating physician's opinion is generally entitled to
more weight than an examining physician's, and an
examining physician's opinion is generally entitled to
more weight than a nonexamining physician's. Id.
so because treating physicians are employed to cure and have
a greater opportunity to know and observe the claimant.
Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir.
1996). If a treating physician's opinion is well
supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in the record, it should be given
controlling weight. §§ 404.1527(c)(2),
416.927(c)(2). If a treating physician's opinion is not
given controlling weight, its weight is determined by length
of the treatment relationship, frequency of examination,
nature and extent of the treatment relationship, amount of
evidence supporting the opinion, consistency with the record
as a whole, the doctor's area of specialization, and
other factors. §§ 404.1527(c)(2)-(6),
treating physician's opinion is not contradicted by other
evidence in the record, it may be rejected only for
“clear and convincing” reasons. See Carmickle
v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164
(9th Cir. 2008) (citing Lester, 81 F.3d at 830-31).
When it is contradicted, the ALJ must provide only
“specific and legitimate reasons” for discounting
it. Id. (citing Lester, 81 F.3d at 830-31).
Furthermore, “[t]he ALJ need not accept the opinion of
any physician, including a treating physician, if that
opinion is brief, conclusory, and inadequately supported by