Deborah Bradley v. Jo Anne B Barnhart

Case 2:05-cv-00865-PJW Document 21 Filed 09/14/06 Page 1 of 21 Page ID #:124 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CA...

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Case 2:05-cv-00865-PJW Document 21 Filed 09/14/06 Page 1 of 21 Page ID #:124

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DEBORAH BRADLEY, Plaintiff,

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) ) ) ) ) ) ) ) ) ) ) )

v. JO ANNE B. BARNHART, Commissioner of the Social Security Administration, Defendant.

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No. CV 05-865-PJW MEMORANDUM OPINION AND ORDER

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I.

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INTRODUCTION

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Plaintiff brings this action pursuant to 42 U.S.C. §§ 405(g) and

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1383(c)(3), seeking to overturn the decision of the Social Security

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Administration (hereinafter the “Agency”) denying Supplemental

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Security Income (“SSI”) benefits.

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to remand the case to the Agency for further proceedings.

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reasons discussed below, the decision of the Agency is REVERSED, and

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the action is REMANDED for further proceedings consistent with this

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opinion.

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Alternatively, she asks the Court For the

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II.

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BACKGROUND

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Plaintiff was born on October 15, 1962, and was 41 years old at

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the time of the February 5, 2004 administrative hearing.

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(Administrative Record (“AR”) 81.)

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person” in social security parlance.

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completed high school, and obtained an AA degree in 1984.

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Thereafter, Plaintiff worked as a claims examiner for Aetna Healthcare

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and others for about 22 years.

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A.

As such, she was a “younger 20 C.F.R. § 416.963(c).

She

(AR 81.)

(AR 33, 81-82, 186.)

History of Plaintiff’s Disability and SSI Applications Plaintiff filed an application for SSI on July 23, 1991, which

was denied.

She did not appeal this denial.

In September 1999, Plaintiff was involved in an automobile

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accident, which “reactivated an old back injury” and, she claims,

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rendered her disabled.

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sustained in the accident, Plaintiff was unable to continue working

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full time at Aetna and worked part-time (four hours per day) for

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approximately nine months.

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she had to work at least six hours to keep her job, Plaintiff quit and

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filed a workers’ compensation action, alleging undue stress.

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(AR 82, 192.)

As a result of the injuries she

(AR 33-34.)

After Aetna informed her that

(AR 85.)

Plaintiff filed the instant application for SSI on February 1,

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2001, alleging inability to work since September 25, 1999.

(AR 161-

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63, 185.)

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sciatica, resulting in an inability to sit, stand, walk, or bend

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without pain.

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Plaintiff requested a hearing before an administrative law judge

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(“ALJ”).

She claimed that she suffered from lumbar disc disease with

(AR 185.)

Following an initial denial of her claim,

(AR 115-19, 122.)

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B.

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The 2002 Hearing and the ALJ Decision On May 1, 2002, a hearing was held before an ALJ.

(AR 29-56.)

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Plaintiff was represented by counsel and testified at the hearing.

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(AR 31-49, 54-56.)

A vocational expert also testified.

(AR 50-54.)

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By decision dated September 16, 2002, the ALJ found that

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Plaintiff was capable of light work, limited to simple one- or two-

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step instructions in a low stress environment with normal and average

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production and pace.

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Plaintiff could no longer perform her past relevant work, there were

(AR 106-110.)

The ALJ concluded that, although

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other jobs which she could perform.

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that Plaintiff was not disabled as defined in the Social Security Act

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at any time through the date of his decision.

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C.

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Accordingly, the ALJ determined

(AR 111.)

The Appeals Council Remand On June 10, 2003, the Appeals Council vacated the ALJ’s decision

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and remanded the case for a new hearing based on the fact that

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voluminous new medical records had been submitted while the case was

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on appeal.

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records “suggests a possibility of greater impairment severity and

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limitations.”

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to:

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(AR 135-38.)

The Appeals Council concluded that these new

(AR 136-37.)

The Council directed the ALJ on remand

obtain additional evidence regarding

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musculoskeletal and mental impairments (including,

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if necessary, consultative orthopedic and mental

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status examinations);

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give further consideration to maximum residual functional capacity and evaluate the treating and

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examining source opinions and nonexamining source

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opinions, explaining the weight given to such

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evidence;

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further evaluate subjective complaints;

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further evaluate mental impairments;

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if necessary, obtain evidence from a medical

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expert to clarify the nature and severity of

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impairments; and

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if warranted by the expanded record, obtain

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additional evidence from a vocational expert

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regarding identification of potential jobs.

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(AR 137-38.)

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D.

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The 2004 Hearing and the ALJ’s Decision On February 5, 2004, a different ALJ held a new hearing.

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101.)

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hearing.

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medical experts testified.

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(AR 57-

Plaintiff was represented by counsel and testified at the (AR 59, 81-92.)

In addition, a vocational expert and two (AR 64-100.)

On March 25, 2004, the second ALJ issued a decision analyzing

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Plaintiff’s claims under the Agency’s five-step sequential evaluation

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process, ultimately concluding that Plaintiff was not disabled.

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20-28.)

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substantial gainful activity since the alleged onset date of her

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disability.

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impairments, including degenerative joint disease of the lumbar spine

(AR

The ALJ determined that Plaintiff had not engaged in

(AR 27.)

She found that Plaintiff had severe

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and depression, but that Plaintiff’s impairments did not meet or equal

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a Listing.1

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(AR 27.)

The ALJ concluded that Plaintiff was physically capable of light

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work, but, due to mental and emotional impairments, could not work

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with the public and should have no more than occasional interaction

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with supervisors and co-workers.

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Plaintiff could not return to her job as a claims examiner, but was

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capable of performing the occupations of hand packer and linen grader

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and that these jobs existed in significant numbers in the economy.

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(AR 26-27.)

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Council denied review.

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Court.

(AR 27.)

The ALJ determined that

Plaintiff challenged the ALJ’s decision, but the Appeals (AR 6-7.)

Plaintiff then filed suit in this

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III.

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ANALYSIS

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Plaintiff alleges that the ALJ erred by (1) improperly rejecting

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the opinions of the treating physicians in favor of non-treating, and

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non-examining physicians; (2) finding that Plaintiff’s testimony was

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not credible; and (3) failing to set forth a complete and accurate

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hypothetical to the vocational expert.

(Joint Stipulation (“JS”) at

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The ALJ noted that Plaintiff claimed six impairments: vertigo, gastroesophageal reflux disease, depression, hypertension, high cholesterol, and degenerative joint disease of the lumbar spine. (AR 22.) The medical expert opined that, of these, the hypertension and high cholesterol were not severe, and the vertigo, gastroesophageal reflux disease, and depression were controlled. (AR 22.) Although she did not explicitly state, it appears the ALJ agreed with the medical expert that Plaintiff’s vertigo, gastroesophageal reflux disease, hypertension, and high cholesterol were not severe within the meaning of the Regulations. (AR 23.) It should also be noted that nowhere on Plaintiff’s Disability Report did she indicate that vertigo, gastroesophageal reflux disease, hypertension, or high cholesterol limited her ability to work. (AR 184-93.) 5

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2.)

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properly rejected the opinion of Plaintiff’s treating psychiatrist,

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but failed to state specific and legitimate reasons for rejecting the

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opinion of Plaintiff’s treating orthopedist.

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is required.

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that the ALJ’s finding that Plaintiff was not credible is supported by

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the evidence and the hypothetical to the vocational expert adequately

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took into account all of Plaintiff’s limitations.

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A.

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For the reasons set forth below, the Court finds that the ALJ

For that reason, remand

As to Plaintiff’s other claims of error, the Court finds

Standard of Review “Disability” under the Agency regulations is defined as the

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inability to perform any substantial gainful activity due to “any

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medically determinable physical or mental impairment which can be

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expected to result in death or which has lasted or can be expected to

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last for a continuous period of not less than 12 months.”

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§ 1382c(a)(3)(A).

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claimant is not disabled only if the decision is not supported by

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substantial evidence or is based on legal error.

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881 F.2d 747, 750 (9th Cir. 1989).

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relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion.’”

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(1971)(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

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It is “more than a mere scintilla but less than a preponderance,”

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Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998), and “does not

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mean a large or considerable amount of evidence,” Pierce v. Underwood,

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487 U.S. 552, 565 (1988).

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42 U.S.C.

The Court may overturn the ALJ’s decision that a

Magallanes v. Bowen,

Substantial evidence “‘means such

Richardson v. Perales, 402 U.S. 389, 401

The Court must uphold the ALJ’s conclusion even if the evidence

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in the record “is susceptible to more than one rational

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interpretation.”

Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 6

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599 (9th Cir. 1999).

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support either affirming or reversing the Agency’s decision, this

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Court must not substitute its judgment for that of the ALJ.

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v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

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of the limited scope of review, the ALJ's decision will be upheld

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where the evidence is conflicting or inconclusive.

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Bowen, 853 F.2d 643, 647 (9th Cir. 1987).

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B.

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Indeed, if the record evidence can reasonably

Tackett

Moreover, as a result

See Winans v.

The ALJ Failed to State Specific and Legitimate Reasons for Rejecting the Opinion of Plaintiff’s Treating Orthopedist But

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Properly Weighed the Medical Evidence of Plaintiff’s Psychiatric

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Impairment

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Plaintiff claims that the ALJ improperly rejected her treating

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physicians’ and her treating psychiatrist’s opinions, in favor of the

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non-treating doctors’ opinions.

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finds that the ALJ did not set forth proper reasons for rejecting the

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treating physicians’ opinions, but did set forth proper reasons for

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rejecting the treating psychiatrist’s opinion.

For the following reasons, the Court

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A treating physician’s opinion on the nature and severity of an

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impairment will be given controlling weight if it is “well-supported

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by medically acceptable clinical and laboratory diagnostic techniques

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and is not inconsistent with the other substantial evidence in [the]

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case record.”

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accept a treating physician’s opinion which is "brief and

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conclusionary in form with little in the way of clinical findings to

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support [his or her] conclusion."

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(internal quotations omitted); see also Johnson v. Shalala, 60 F.3d

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1428, 1432 (9th Cir. 1995)(noting that the ALJ need not accept a

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treating physician’s opinion that is “conclusory and unsubstantiated

20 C.F.R. § 416.927(d)(2).

The ALJ is not required to

Magallanes, 881 F.2d at 751

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by relevant medical documentation”).

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treating physician’s opinion whether or not that opinion is

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contradicted.”

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“The ALJ may disregard the

Magallanes, 881 F.2d at 751.

To reject the conflicting or contradicted opinion of a treating

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physician, “the ALJ must ‘make findings setting forth specific,

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legitimate reasons for doing so that are based on substantial evidence

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in the record.’”

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meet this burden by setting forth a detailed summary of the facts and

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the conflicting evidence, stating his interpretation of the evidence,

Id. (quoting Winans, 853 F.2d at 647).

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and making findings.

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1408 (9th Cir. 1986).

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An ALJ may

Id.; see also Cotton v. Bowen, 799 F.2d 1403,

The ALJ Failed to Provide Specific and Legitimate Reasons

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for Rejecting the Opinions of Plaintiff’s Treating

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Physicians

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Plaintiff’s treating doctors concluded that Plaintiff could not

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work full time.

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concluded that she could.

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agrees.

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The ALJ rejected (or ignored) these opinions and Plaintiff claims this was error.

The Court

In May 1998, Plaintiff was referred to Dr. Phillip Kanter, an

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orthopedist, for evaluation and treatment of an ankle injury.

(AR

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260-62.)

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accident and aggravated a prior back condition.

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began seeing Dr. Kanter again on a monthly basis for approximately 18

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months.

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did not reveal very significant objective or clinical findings.

An

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MRI of the lower back revealed minimal bulges without stenosis.

(AR

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256-57.)

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range of motion in back flexion, and mildly positive straight-leg

Eighteen months later, Plaintiff was in a automobile

(AR 233-59.)

Thereafter, Plaintiff

Dr. Kanter’s various examinations of Plaintiff

The only clinical findings were tenderness, some loss of

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raising.

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were consistently normal.

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253-55, 258.)

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Plaintiff could not work for more than four hours in an eight-hour

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workday.

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Otherwise, there was no spasm, and neurological findings (AR 234, 235, 238, 240-42, 244-48, 250,

Despite these minimal findings, Dr. Kanter opined that

(AR 233, 237, 241, 243, 249, 251.)

Without specifically rejecting Dr. Kanter’s opinion of

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disability, the ALJ concluded that Plaintiff was capable of working

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for eight hours a day.

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was Plaintiff’s treating physician, the ALJ was required to provide

The ALJ erred in doing so.

Because Dr. Kanter

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specific and legitimate reasons for rejecting his opinion.

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failure to do so requires reversal.

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(holding that the ALJ’s failure to provide specific reasons for

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disbelieving the treating physician means that substantial evidence

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does not support his decision and remand is required).

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The Agency disagrees.

Her

See Winans, 853 F.2d at 647.

It argues that the ALJ’s reliance on the

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opinions of medical expert Dr. Gerber and consultative examiner Dr.

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Gary Chen--both of whom noted a lack of correlation between the

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objective findings and the subjective complaints (AR 66, 372)--

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constituted substantial evidence upon which the ALJ properly relied.

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(JS at 8).

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ALJ to explain why she rejected Dr. Kanter’s opinion.

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F.2d at 647. The Court will not speculate as to why it thinks the ALJ

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did so based on the Agency’s arguments on appeal.

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and Dr. Chen are non-treating physicians.

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same deference accorded to a treating physician.

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§ 416.927(d)(2).

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This argument is not persuasive.

It was incumbent on the Winans, 853

Further, Dr. Gerber

Neither is entitled to the 20 C.F.R.

The Agency further argues that the ALJ implicitly rejected Dr. Kanter’s opinion for the same reasons the first ALJ did. 9

This

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argument is not supported by the record.

Though the second ALJ relied

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on the first ALJ’s summation of the medical evidence, including Dr.

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Kanter’s work, the first ALJ did not provide specific and legitimate

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reasons for rejecting Dr. Kanter’s opinion that Plaintiff could only

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work part-time.

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findings, he never said why Dr. Kanter’s opinion was rejected.

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the second ALJ’s reliance on the first ALJ’s reasoning--or lack there

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of--was equally defective.

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and of itself, is not enough to reject a treating doctor’s opinion.

Though the first ALJ discussed the minimal MRI Thus,

Further, a lack of objective findings, in

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See Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989)(“While

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objective diagnoses and observations are the most important parts of a

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physician's reports, . . . the [ALJ's] reliance on the inability of

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the physicians to support their findings with objective laboratory

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findings [does not] constitute[] a clear and convincing reason for

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rejecting their conclusions.")(internal quotation marks and citation

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omitted); 20 C.F.R. § 416.927(d)(2) (Treating sources “may bring a

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unique perspective to the medical evidence that cannot be obtained

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from the objective medical findings alone or from reports of

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individual examinations . . . .”).

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The ALJ’s failure to provide specific and legitimate reasons for

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rejecting Dr. Kanter’s opinion is particularly problematic because Dr.

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Kanter’s opinion was independently supported by the other treating

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doctors.

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the Hubert Humphrey Clinic, who saw Plaintiff every two to three

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months for approximately two years, opined that Plaintiff could sit

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for three hours in an eight-hour workday and stand/walk for one hour

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in an eight-hour workday, an opinion consistent with Dr. Kanter’s.

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(AR 343.)

Dr. Timothy Quinn, Plaintiff’s family practice physician at

Dr. Quinn’s opinion was not mentioned by the ALJ. 10

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Likewise, the ALJ did not mention Dr. P. A. Lucero, another treating

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physician, who opined that Plaintiff was unable to perform a “full-

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time competitive job” on a sustained basis.2

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second ALJ may have been relying on the first ALJ’s decision, the

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first ALJ merely summarized Dr. Lucero’s progress notes without making

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any findings concerning his opinion.3

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page letter from another treating doctor, Dr. Rodolfo Grotton, was

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summarized by the ALJ as indicating that “the claimant was disabled

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because of vertigo, low back pain with sciatic nerve dysfunction,

(AR 288.)

(AR 108.)

Though the

Similarly, a one-

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arthritis, hypertension and depression,” but no reasons were cited for

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rejecting the opinion.

(AR 23, 403.)

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The ALJ’s failure to properly address the treating physicians’

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opinions that Plaintiff could not perform full time work amounts to

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error.

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these opinions.

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1989).

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2.

Accordingly, remand is required for further assessment of McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir.

The ALJ Provided Specific and Legitimate Reasons for

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Rejecting the Opinion of Plaintiff’s Treating Psychiatrist

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Dr. Curtis

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Plaintiff contends that the ALJ erred when she rejected the opinion of Plaintiff’s treating psychiatrist, Dr. Curtis, that

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The pages of Dr. Lucero’s responses to the questionnaire are out of order in the administrative record, and it is clear that a very pertinent page is missing from the report. (AR 285-86.) 3

Dr. Lucero’s responses to a questionnaire are found at Exhibit 7F. (AR 283-89.) The first ALJ indicated that Dr. Lucero’s progress notes covering September 17, 2001 to April 5, 2002, are also part of the Exhibit. (AR 108.) However, the progress notes found in Exhibit 7F are from Dr. Quinn and other physicians at the Los Angeles County Hospital, not Dr. Lucero. (AR 290-312.) 11

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Plaintiff was disabled, and relied, instead, on the medical expert’s

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opinion that Plaintiff was not.4

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the ALJ did not provide specific and legitimate reasons for rejecting

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Dr. Curtis’ opinion.

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misinterpreted Dr. Curtis’ conclusions and, as a result, erroneously

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concluded that Dr. Curtis’ opinion was inconsistent with his findings.

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(JS at 5-6.)

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Curtis was acting as Plaintiff’s advocate--another reason for

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rejecting Dr. Curtis’ opinion--was not supported by the evidence.

(JS at 5.)

(JS at 5.)

Plaintiff claims that

She argues further that the ALJ

Plaintiff also contends that the ALJ’s finding that Dr.

(JS

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at 6.)

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review the complete medical record, and, therefore, his opinion that

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Plaintiff was not disabled did not amount to substantial evidence.

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(JS at 6-7.)

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Finally, Plaintiff claims that the medical expert did not

The ALJ rejected the treating psychiatrist’s opinion because she

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agreed with the medical expert that “Dr. Curtis’ opinion was

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inconsistent with his own reported findings.”

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is a specific and legitimate reason for rejecting the opinion and, as

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set forth below, is supported by substantial evidence in this record.

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See Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003)(affirming

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decision rejecting treating physician’s opinion where treating

(AR 24, 74-75.)

This

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The Court rejects Plaintiff’s argument that the ALJ’s conclusion regarding Plaintiff’s psychological impairments was based entirely on Dr. Drucker’s testimony. (JS at 13.) The ALJ also cited Dr. Harrell Reznick’s psychological evaluation results to support her decision, which indicated that Plaintiff was “capable of performing simple, repetitive tasks with appropriate persistence and pace and had only moderate to mild limitations in the areas of interacting with others in the workplace and dealing with other work stresses.” (AR 24.) Nevertheless, the Court agrees with Plaintiff that the ALJ relied heavily on the testimony of Dr. Drucker. 12

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physician’s extensive limitations were not supported by his own

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treatment notes).

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For that reason, it will be affirmed.

Plaintiff began treatment with Dr. Thomas Curtis in connection

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with her workers’ compensation claim in November 2001.

Dr. Curtis

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conducted an initial evaluation--which did not make it into the

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administrative record--and referred her for treatment with his staff.

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(AR 42.)

On July 18, 2002, Dr. Curtis conducted psychological

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testing.

(AR 375-401.)

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findings, Dr. Curtis opined that, due to various symptoms, Plaintiff

In a September 2002 report setting forth his

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would have “an overall moderate degree of emotional impairment at

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about the 50% standard . . . .”

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rated each of eight work functions as being slightly-to-moderately

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impaired.5

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form for Plaintiff’s SSI claim in which he reported that Plaintiff’s

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level of impairment was “marked” in almost all of these same eight

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work functions.

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the report and the form are readily apparent.

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support the ALJ’s decision to reject Dr. Curtis’ opinion.

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(AR 396-97.)

(AR 396.)

More specifically, he

In May 2003, however, Dr. Curtis completed a

(AR 352-54.)

Clearly, the inconsistencies between These inconsistencies

Plaintiff argues that Dr. Curtis’ reports are not inconsistent

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but that the ALJ “failed to recognize the distinction between the

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workers’ compensation definitions and the definitions used under the

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Social Security disability scheme.”

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support this argument.

(JS at 6.)

The record does not

It is clear from the hearing transcript that

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In workers’ compensation terminology, a slight impairment is a noticeable impairment; a moderate impairment is a marked impairment. (JS at 6; see 2-32 Hanna, California Law of Employee Injuries & Worker’s Compensation § 32.02[5][b][iii] n.62 (Matthew Bender, 2006). Therefore, a slight-to-moderate impairment under workers’ compensation terminology would be a noticeable to marked impairment under social security terminology. 13

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the ALJ was fully aware that the definitions were different, inasmuch

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as she questioned the vocational expert about the differences between

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the terms.

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testimony at the same hearing--that “marked” impairment is

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“inconsistent with a finding of slight to moderate residual disability

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in workers’ compensation terms”--is supported by substantial evidence

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in the record.6

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inconsistent, and Plaintiff has failed to provide any reason

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supporting such a change.

(AR 93.)

It is also clear that the medical expert’s

(AR 74-75.)

Clearly, Dr. Curtis’ reports are

As such, the ALJ’s decision to reject Dr.

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Curtis’ opinion is affirmed.

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957 (9th Cir. 2002)(affirming ALJ’s decision to reject treating

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doctor’s opinion where treating doctor stated on claimant’s student

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loan form that student was totally disabled but doctor’s notes

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contradicted claim of total disability).

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See Thomas v. Barnhart, 278 F.3d 947,

Plaintiff also argues that remand is required because the medical

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expert, Dr. Drucker, did not review all of Plaintiff’s psychiatric

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treatment records, specifically Dr. Curtis’ November 8, 2001 testing

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and a report summarizing that testing, as evidenced by the following

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colloquy at the hearing:

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Q:

A:

No, I did not receive that. . . .

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So Doctor, you did review the testing

that Dr. Curtis did on November 8 of 2001?

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[To Dr. Drucker]

Q:

Okay, You didn’t receive the earlier exhibit?

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The curriculum vitae of medical expert Dr. Drucker indicates that he has been an independent medical examiner with the California Workers’ Compensation Appeals Board since 1968. (AR 144.) 14

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A:

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Nor did -- by the way, he refers to a defense examination.

I didn’t receive that either.

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Q:

So you didn’t review the testing from Dr. Curtis?

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A:

I -- well, you heard my testimony.

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(AR 75.) It is unclear why Dr. Curtis’ November 8, 2001 testing and report

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were not in the administrative record, as it appears they were

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submitted to the Appeals Council.

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why neither was shown to Dr. Drucker at any time.

(AR 210.)

It is equally unclear In reviewing the

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progress notes that are in the record, however, it does not appear

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that they would have changed Dr. Drucker’s opinion.

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These records appear to be cumulative and do not support Plaintiff’s

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request for remand on this issue.

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27-page report--which details and explains all his treatment of

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Plaintiff, including the November 2001 testing–-was reviewed by Dr.

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Drucker.

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apprised of Dr. Curtis’ opinion and the basis for it and was qualified

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to opine on Dr. Curtis’ work.

(AR 358, 359.)

Further, Dr. Curtis’ September 2002

As such, it is fair to say that Dr. Drucker was fully

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Moreover, Plaintiff essentially ignores other substantial

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evidence supporting the ALJ’s assessment of Plaintiff’s mental

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limitations--namely, the opinions of the consultative psychologist,

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Dr. Harrell Reznick, and the consultative psychiatrist, Dr. Norma

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Aguilar.

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virtually no limitations except for mild difficulty maintaining

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persistence and pace in a normal work setting.

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Reznick concluded that, although Plaintiff had some slight

27

limitations, she could work.

28

based on their independent clinical findings, the ALJ was free to rely

(AR 313-16, 360-69.)

Dr. Aguilar found that Plaintiff had

(AR 367.)

15

(AR 315-16.)

Dr.

Because their opinions are

Case 2:05-cv-00865-PJW Document 21 Filed 09/14/06 Page 16 of 21 Page ID #:139

1

on them in reaching his conclusion that Plaintiff could work.

2

v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995).

3

Andrews

Nevertheless, inasmuch as the matter requires remand on another

4

issue, if Plaintiff continues to believe that the Dr. Curtis’ initial

5

report and intermediate progress notes are relevant, she may submit

6

them to the ALJ on remand.

7

ALJ should summarize the evidence and make specific findings

8

concerning the weight to be accorded the evidence.

9

C.

If additional evidence is submitted, the

The ALJ Did Not Err in Finding Plaintiff’s Subjective Pain

10

Testimony Not Fully Credible

11

Plaintiff testified, in essence, that her back pain and emotional

12

problems prevented her from working.

13

incredible and rejected it.

14

following reasons, the Court disagrees.

15

The ALJ found this testimony

Plaintiff claims this was error.

For the

An ALJ must undertake a two-step analysis when considering a

16

claimant’s subjective symptom testimony.

Smolen v. Chater, 80 F.3d

17

1273, 1281 (9th Cir. 1996).

18

has produced objective medical evidence of an impairment which could

19

reasonably be expected to produce the symptoms alleged.

20

1281-82.

21

the severity of the symptoms.

22

objective medical evidence of an impairment and shows that the

23

impairment could be expected to produce the symptoms alleged, the ALJ

24

can only reject the claimant’s testimony concerning the severity of

25

the symptoms by citing specific, clear, and convincing reasons for

26

doing so.

27

to degree of pain merely because it is unsupported by objective

28

evidence.

First, she must determine if the claimant

Id. at

Second, she must determine the claimant’s credibility as to

Id.

Id. at 1282.

If the claimant produces

The ALJ may not discredit the claimant’s testimony as

See Bunnell v. Sullivan, 947 F.2d 341, 343, 346-47 (9th 16

Case 2:05-cv-00865-PJW Document 21 Filed 09/14/06 Page 17 of 21 Page ID #:140

1

Cir. 1991)(en banc).

2

may take into account, among other things, (1) ordinary credibility

3

evaluation techniques, (2) unexplained or inadequately explained

4

failure to seek or follow treatment, and (3) the claimant’s daily

5

activities.

6

finding is supported by substantial evidence in the record, the Court

7

may not engage in second-guessing.

8 9

In making a credibility determination, the ALJ

Smolen, 80 F.3d at 1284.7

If the ALJ's credibility

Thomas, 278 F.3d at 959.

Plaintiff testified that she could not work due to back pain and depression.

(AR 81-89.)

She stated that during the day she takes

10

over-the-counter Extra-Strength Tylenol to relieve her back pain about

11

two to three times per week and at night she takes Tramadol,8 which

12

makes her sleepy.

13

course of treatment has been prescribed for Plaintiff.

14

Plaintiff stated on her Daily Activities Questionnaire that her

15

average day consists of walking her dog, listening to music, having

16

coffee, driving to pick up her cousin, eating dinner, studying her

17

bible, and watching television.

18

needing significant assistance performing work around the house,

19

though she claimed feeling weak the day after performing household

20

chores.

(AR 194.)

(AR 84.)

Other than physical therapy, no other

(AR 194.)

(AR 84.)

She also reported not

Plaintiff also reported being able to go grocery

21 22 23 24 25 26 27 28

7

Social Security Ruling (“SSR”) 96-7p provides that the ALJ’s assessment of the credibility of subjective pain statements must be based on a consideration of all of the evidence in the case record, which includes, but is not limited to, medical signs and laboratory findings; diagnosis, prognosis, and other medical opinions; statements and reports from the claimant and others; prior work record and efforts to work; daily activities; and observations about the individual. 8

Tramadol is an analgesic medication used for treating moderate to severe pain. Wikipedia.org, Tramadol, http://en.wikipedia.org/ wiki/Tramadol (last visited July 28, 2006). 17

Case 2:05-cv-00865-PJW Document 21 Filed 09/14/06 Page 18 of 21 Page ID #:141

1

shopping with some minor assistance, and being able to attend church

2

and participate in church activities.

(AR 194-95.)

3

The ALJ found that Plaintiff’s allegations regarding her physical

4

limitations were not totally credible because, among other things, she

5

could control the pain during the day with over-the-counter

6

medications.

7

claimant’s allegations of pain.

8

and Human Services, 16 F.3d 967, 971 (8th Cir. 1994)(upholding ALJ’s

9

decision that taking over-the-counter pain medication was inconsistent

(AR 25, 27.)

This is a legitimate reason to reject a See Loving v. Department of Health

10

with claim of disabling pain).

11

activities were not significantly limited by the . . . physical

12

limitations.”

13

a claimant’s complaints of pain.

14

was the ALJ’s observation that multiple examining and consultative

15

physicians opined that Plaintiff could perform light work.

16

25.)

17

capable of performing all normal activities of daily living.”

18

24.)

19

correlation” between the objective and subjective evidence of pain.

20

(AR 22.)

21

reason for disbelieving subjective complaints, it is, nevertheless,

22

one of the factors the ALJ can consider.

23

(AR 25.)

The ALJ also noted that “[h]er daily

Again, this is a legitimate reason to reject Smolen, 80 F.3d at 1284.

So, too,

(AR 22-

In fact, the ALJ noted that one doctor stated “claimant was (AR

Finally, the ALJ concluded that there was a “striking lack of

Although the lack of objective evidence cannot be the sole

Bunnell, 947 F.2d at 346-47.

With regard to Plaintiff's claims about her psychological

24

impairments, the ALJ noted that she appeared to be “genuinely

25

depressed,” but that "her depression does not render her totally

26

incapable of performing work activity."

27

not totally reject Plaintiff's subjective complaints related to her

28

depression.

(AR 24.)

Thus, the ALJ did

The ALJ observed, however, that Plaintiff's daily 18

Case 2:05-cv-00865-PJW Document 21 Filed 09/14/06 Page 19 of 21 Page ID #:142

1

activities were not significantly limited by the emotional . . .

2

limitations."

3

substantial evidence in the record, is sufficiently specific, clear,

4

and convincing to support the ALJ’s decision to reject Plaintiff’s

5

claims.

6

(AR 25.)

This reason, which was supported by

Smolen, 80 F.3d at 1284.

For these reasons, the ALJ’s finding that Plaintiff was not

7

credible is affirmed.

8

D.

The ALJ’s Hypothetical Question to the Vocational Expert Adequately Incorporated All of Plaintiff’s Limitations

9 10

Plaintiff contends in this appeal that the ALJ erred by not

11

including in the hypothetical to the vocational expert that Plaintiff

12

was also limited because she seldom to often had difficulties in

13

concentration, persistence, and pace.

14

this oversight mandates reversal.

15

not required to include this limitation in the hypothetical to the

16

vocational expert because it was subsumed in the ALJ’s qualification

17

that Plaintiff was limited to no more than average production and

18

pace.

19

(JS at 19.)

She claims that

Defendant counters that the ALJ was

(JS at 22-23.) The Court concludes that the ALJ did not err in failing to

20

include in the hypothetical to the vocational expert that Plaintiff

21

seldom to often had deficiencies of concentration, persistence, and

22

pace.

23

hypothetical, limiting Plaintiff to simple, repetitive tasks, with no

24

more than an average production or pace.

25

F.3d 417, 421 (8th Cir. 1997)(finding that the ALJ’s hypothetical

26

question that Brachtel was able “‘to do only simple routine repetitive

27

work, which does not require close attention to detail’ . . . and that

28

‘[Brachtel] should not work at more than a regular pace’” adequately

This limitation was adequately incorporated in the ALJ’s

19

See Brachtel v. Apfel, 132

Case 2:05-cv-00865-PJW Document 21 Filed 09/14/06 Page 20 of 21 Page ID #:143

1

incorporated the ALJ’s finding that Brachtel “often” had deficiencies

2

of concentration, persistence, or pace).

3

Plaintiff also argues that the vocational expert deviated from

4

the Dictionary of Occupational Titles (“DOT”) because the jobs she

5

testified Plaintiff could perform required a reasoning level of two

6

(ability to carry out detailed but uninvolved instructions), which is

7

inconsistent with Plaintiff’s limitation to simple and repetitive

8

tasks.

9

expert was deviating from the DOT, the ALJ had a duty to articulate

(JS at 20-22.)

Plaintiff argues that, because the vocational

10

why she accepted the vocational expert’s testimony.

(JS at 20-22.)

11

The Court disagrees with Plaintiff’s argument here.

Just because

12

someone is limited to simple and repetitive tasks does not mean that

13

they are incapable of performing at a reasoning level of two, which

14

requires “commonsense understanding to carry out detailed but

15

uninvolved written or oral instruction,” and the ability to “[d]eal

16

with problems involving a few concrete variables in or from

17

standardized situations.”

18

1991) § 559.687-074 (inspector and hand packager) and § 361.687-022

19

(linen grader).

20

preclude jobs requiring a reasoning level of two.

21

vocational expert testified that the linen grader and hand packager

22

jobs were both “simple and repetitive-type jobs,” and explained her

23

rationale for this statement on cross-examination.

24

there was no deviation from the DOT and Plaintiff’s argument here

25

fails.9

Dictionary of Occupational Titles, (4th ed.

A limitation to simple and repetitive tasks does not Moreover, the

(AR 94-95.)

Thus,

26 27 28

9

The Court notes that, on remand, the residual functional capacity assessment may change, depending on the weight given to the opinions of Plaintiff’s treating physicians. If a vocational expert 20

Case 2:05-cv-00865-PJW Document 21 Filed 09/14/06 Page 21 of 21 Page ID #:144

1 2

IV.

3

CONCLUSION

4

For these reasons, the Agency’s decision is reversed and the case

5

is remanded to the Agency for further proceedings consistent with this

6

Opinion.

7 IT IS SO ORDERED. 8 9

DATED: September

14

, 2006

10 11 /s/ PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE

12 13 14 15 16 17 18 19 20 21 22 23 24 25

S:\PJW\Cases-Soc Sec\BRADLEY\Memo_Order.wpd

26 27 28

is called, the hypothetical should contain any new residual functional capacity finding. 21