Nebraska W. Moten v. Michael J. Astrue, No. 2:2010cv05009 - Document 20 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman: (See document for details.) The decision of the Social Security Commissioner is hereby AFFIRMED. (rla)
Download PDF
<![CDATA[
Nebraska W. Moten v. Michael J. Astrue Doc. 20 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 WESTERN DIVISION 9 10 NEBRASKA MOTEN, Plaintiff, 11 12 13 14 ) ) ) ) ) ) ) ) ) ) ) ) ) v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. 16 Case No. CV 10-5009-MLG MEMORANDUM OPINION AND ORDER 17 18 Plaintiff Nebraska 19 Commissioner s 20 Security Disability Insurance ( SSDI ) and Supplemental Security Income 21 ( SSI ) benefits. For the reasons set forth below, the final decision of 22 the Commissioner is affirmed. final Moten decision seeks denying judicial his review application of for the Social 23 24 I. Background 25 Plaintiff filed his application for SSDI and SSI benefits on June 26 25, 2007, alleging disability as of January 1, 2007 due to diabetes 27 mellitus 28 (Administrative Record ( AR ) 153-154, 247-253, 254-256). Plaintiff s and discogenic and degenerative disorders of the back. Dockets.Justia.com 1 application was denied (AR 2007 upon 4 November 2, 5 Fortune. Plaintiff, 6 testified, as did a vocational expert and a medical expert. (AR 54-104, 7 105-152.) Administrative represented by a 163-167, and administrative hearing was held on July 30, 2009, and continued on 9 2008. 24, 3 before 29, September reconsideration 2009, February on 2 8 on initially Law Judge non-attorney 169-174). ( ALJ ) An Lowell representative, Plaintiff was born on January 11, 1966 and was 43 years old at the time of the administrative hearing. (AR 15, 153.) He completed high 10 school and has work experience as an assistant manager of a group home, 11 a janitor, and a security guard. (AR 265, 269.) 12 On January 8, 2010, ALJ Fortune denied Plaintiff s application for 13 benefits. (AR 15-27.) The ALJ found that Plaintiff had not engaged in 14 substantial gainful activity since the alleged onset date. (AR 17.) The 15 ALJ further found that Plaintiff had the following severe impairments: 16 morbid 17 neuropathy; 18 affective disorder. (Id.) However, the ALJ determined that Plaintiff s 19 impairments did not meet or were not medically equal to, one of the 20 listed impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1. (AR 21 18.) obesity; type coronary 2 diabetes artery mellitus disease; with lumbar sensory spine peripheral disorder; and 22 The ALJ next found that Plaintiff retained the residual functional 23 capacity ( RFC ) to perform sedentary work as defined in 20 C.F.R. 24 404.1567(a) and 416.967(a) with the following exceptions: He can 25 occasionally 26 scaffolds or ropes. He can occasionally perform postural activities 27 including stooping, kneeling, crouching, and crawling, but he cannot 28 balance. He should not work in exposure to power tools, dangerous climb stairs or ramps 2 but he cannot climb ladders, 1 machinery, or unprotected heights. He should work in an air-conditioned 2 environment 3 chemicals. He should not do work requiring hypervigilance. He should not 4 perform high-quota, production-rate work such as rapid assembly line 5 work. He should not perform safety operations or be responsible for the 6 safety of others. (AR 18-19.) The ALJ determined that Plaintiff was 7 unable to perform any past relevant work. (AR 25.) However, the ALJ 8 concluded, based upon the testimony of the VE, that Plaintiff was 9 capable of performing various jobs that exist in significant numbers in 10 the national economy. (Id.) Therefore, the ALJ concluded that Plaintiff 11 was not disabled within the meaning of the Social Security Act. 20 12 C.F.R. § 416.920(f). (AR 26.) without exposure to fumes, odors, dust, gases, and 13 On May 19, 2010, the Appeals Council denied review (AR 1-4), and 14 Plaintiff timely commenced this action for judicial review. On March 1, 15 2011, the parties filed a Joint Stipulation ( Joint Stip. ) of disputed 16 facts and issues, in which Plaintiff claims that the ALJ failed to 17 properly consider the opinion of a nurse practitioner. (Joint Stip. 4.) 18 Plaintiff asks the Court to remand for further proceedings. (Joint Stip. 19 16.) The Commissioner requests that the ALJ s decision be affirmed. 20 (Joint Stip. 17.) 21 22 23 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 24 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 25 decision must be upheld unless the ALJ s findings are based on legal 26 error or are not supported by substantial evidence in the record as a 27 whole. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Parra v. 28 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means 3 1 such evidence as a reasonable person might accept as adequate to support 2 a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark 3 v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a 4 scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 5 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial 6 evidence supports a finding, the reviewing court must review the 7 administrative record as a whole, weighing both the evidence that 8 supports 9 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If and the evidence that detracts from the Commissioner s 10 the 11 conclusion, the reviewing court may not substitute its judgment for 12 that of the ALJ. Robbins, 466 F.3d at 882. evidence can support either affirming or reversing the ALJ s 13 14 III. The ALJ Properly Assessed the Opinion of the Nurse Practitioner 15 Plaintiff contends that the ALJ erred by rejecting the assessment 16 of a nurse practitioner, Kathy French, whom Plaintiff saw on March 11, 17 2009. (Joint Stip. 4.) In a Diabetes Mellitus Residual Functional 18 Capacity Questionnaire, Ms. French opined that Plaintiff could only sit 19 for one hour at a time and up to two hours per day and that Plaintiff 20 could only stand or walk for ten minutes at a time and no more than two 21 hours in a day. She also found that Plaintiff could lift and carry 10 22 pounds or less frequently and 20 pounds rarely. She determined that 23 Plaintiff would need to frequently elevate his legs and would be absent 24 from work four or more times per month. (AR 597-600.) 25 The ALJ rejected the Nurse French s opinion for the following 26 reasons: (1) she only treated Plaintiff on one occasion; (2) her RFC 27 assessment was not supported by objective or clinical findings; and (3) 28 because she is not a licensed physician, her assessment is not medical 4 1 evidence from an acceptable source, pursuant to 20 C.F.R. §§ 404.513, 2 416.913. (AR 24.) Each of these reasons is proper and substantially 3 supported by the record. 4 First, it was proper for the ALJ not to accord significant weight 5 to Ms. French s opinion because she only treated Plaintiff on a single 6 occasion. The factors to be considered by the adjudicator in determining 7 the weight to give a medical opinion include: [l]ength of the treatment 8 relationship 9 physician; and the nature and extent of the treatment relationship 10 between the patient and the treating physician. Orn v. Astrue, 495 F.3d 11 625, 631-633 (9th Cir. 2007); 20 C.F.R. §§ 404.1527(d)(2)(i)-(ii), 12 416.927(d)(2)(i)-(ii). and the frequency of examination by the treating 13 Plaintiff contends that, although Ms. French only saw Plaintiff on 14 a single occasion, she was employed in the clinic from which he had 15 obtained treatment since January 2004 and should be considered part of 16 a treating team, citing Gomez v. Chater, 74 F.3d 967, 971 (9th Cir. 17 1996). (Joint Stip. 9.) However, the Gomez court specifically noted that 18 the nurse practitioner in that case consulted with a medical doctor 19 numerous times over the course of her relationship with the claimant, 20 worked closely under the supervision of the treating physician, and 21 was acting as an agent of [the treating physician] in her relationship 22 with the claimant. Id. Here, there is no evidence in the record to 23 establish that Ms. French worked so closely with Plaintiff s treating 24 physician(s) to allow her March 11, 2009 opinion to be properly 25 considered as part of the opinion of the treating physician. Id. 26 Second, the ALJ properly determined that Ms. French s RFC 27 assessment was not supported by the objective medical evidence in the 28 record. Ms. French s RFC assessment was unsupported by any treatment 5 1 notes or other medical findings. (AR 597-600.) An ALJ need not accept a 2 treating 3 unsupported by clinical findings. See Tonapetyan v. Halter, 242 F.3d 4 1144, 1149 (9th Cir. 2001). Moreover, Ms. French s RFC assessment was 5 contradicted by the opinions of the examining consultative physicians 6 and the testifying medical expert. The ALJ properly relied upon the 7 opinions of the examining consultative physicians, Dr. Nicholas N. Lin, 8 M.D. and Dr. Sean S. To, M.D., both of whom found Plaintiff capable of 9 performing light work with certain limitations. (AR 19-20, 380-385, 433- 10 438.) The opinion of an examining physician can constitute substantial 11 evidence when the opinion is consistent with independent clinical 12 findings or other evidence in the record. See Thomas v. Barnhart, 278 13 F.3d 948, 957 (9th Cir. 2002). physician s opinion that is conclusory and brief and 14 In addition, the medical expert, Dr. Samuel Landau, M.D., after 15 reviewing the medical record, determined that Plaintiff was capable of 16 performing light work, including standing and/or walking for two hours 17 and sitting for six hours in an eight-hour workday. (AR 21, 66, 68-69.) 18 See Andrews v. Shalala, 53 F.3d 1035, 1042 (9th Cir. 1995) (ALJ may 19 legitimately credit nonexamining physician s opinion where physician 20 is subject to cross-examination ). Thus, the ALJ properly determined 21 that Ms. French s restrictive RFC assessment was not supported by 22 objective medical evidence and was contradicted by the opinions of the 23 examining consultative physicians and the testifying medical expert. 24 Finally, as Plaintiff himself acknowledges, the May 11, 2009 25 Diabetes Mellitus Residual Functional Capacity Questionnaire does not 26 qualify as a medical source opinion because Ms. French, as a nurse 27 practitioner, is not a licensed physician or other acceptable medical 28 source. See 20 C.F.R. § 404.1513(a). An ALJ may accord opinions from 6 1 other sources less weight than opinions from acceptable medical sources. 2 See Gomez, 74 F.3d at 971. Further, Social Security Ruling ( SSR ) 06- 3 03P, which Plaintiff cites in support of his argument that the ALJ 4 improperly rejected the nurse practitioner s opinion, states that a 5 nurse practitioner, listed as an other source of information about the 6 claimant s medical condition, cannot establish the existence of a 7 medically determinable impairment. A nurse practitioner may, however, 8 provide insight into the severity of the [claimant s] impairment(s) and 9 how it affects the individual s ability to function if based on 10 special knowledge of the individual. SSR 06-03P. 11 As discussed above, Ms. French only treated Plaintiff on a single 12 occasion, and therefore it cannot be said that she has special 13 knowledge of Plaintiff s alleged impairments. Accordingly, it was not 14 error for the ALJ to accord little weight to Ms. French s RFC assessment 15 form because it is not an acceptable medical opinion under the Social 16 Security Regulations. See Howard v. Barnhart, 341 F.3d 1006, 1012 (9th 17 Cir. 2003) (finding that the ALJ is not required to discuss evidence 18 that is neither significant nor probative ). 19 20 IV. Conclusion 21 For the reasons stated above, the decision of the Social Security 22 Commissioner is hereby AFFIRMED. 23 24 DATED: March 8, 2011 25 26 27 ______________________________ Marc L. Goldman United States Magistrate Judge 28 7
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
