Martin Chavez v. Michael J Astrue, No. 2:2011cv01351 - Document 17 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: 1. plaintiff's request for reversal, or in the alternative, remand, is denied; and 2. the decision of the Commissioner is AFFIRMED.IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. **See Order for details.** (ch)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 MARTIN CHAVEZ, 13 Plaintiff, 14 15 v. 16 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 17 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 11-1351-PLA MEMORANDUM OPINION AND ORDER 18 19 I. 20 PROCEEDINGS 21 Plaintiff filed this action on February 16, 2011, seeking review of the Commissioner s denial 22 of his applications for Disability Insurance Benefits and Supplemental Security Income payments. 23 The parties filed Consents to proceed before the undersigned Magistrate Judge on March 8, 2011, 24 and March 22, 2011. Pursuant to the Court s Order, the parties filed a Joint Stipulation on 25 November 28, 2011, that addresses their positions concerning the disputed issues in the case. 26 The Court has taken the Joint Stipulation under submission without oral argument. 27 / 28 / 1 II. 2 BACKGROUND 3 Plaintiff was born on April 8, 1963. [Administrative Record ( AR ) at 73-74.] He has a 4 second grade education [AR at 187], and past relevant work experience as a dish washer, 5 maintenance worker, materials carrier, and sandblaster. [AR at 183.] 6 Plaintiff filed his application for Disability Insurance Benefits on September 18, 2008,1 and 7 protectively filed his application for Supplemental Security Income payments on September 23, 8 2008, alleging that he has been unable to work since July 19, 2006, due to a right shoulder rotator 9 cuff tear, sleep disorder, and problems with his cervical spine. [AR at 73-74, 139, 146, 181-88.] 10 After his applications were denied initially and on reconsideration, plaintiff requested a hearing 11 before an Administrative Law Judge ( ALJ ). [AR at 79-92.] A hearing was held on May 19, 2010, 12 at which time plaintiff appeared without counsel and testified on his own behalf. [AR at 30-63.] 13 A vocational expert also testified. [AR at 60-63.] On June 17, 2010, the ALJ determined that 14 plaintiff was not disabled. [AR at 14-24.] On December 13, 2010, the Appeals Council denied 15 plaintiff s request for review. [AR at 1-7.] This action followed. 16 17 III. 18 STANDARD OF REVIEW 19 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner s 20 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 21 evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 22 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 23 In this context, the term substantial evidence means more than a mere scintilla but less 24 than a preponderance -- it is such relevant evidence that a reasonable mind might accept as 25 26 27 28 1 While plaintiff s application for Disability Insurance Benefits ( DIB ) is dated September 23, 2008 [see AR at 146], plaintiff s DIB Disability Determination and Transmittal states that September 18, 2008, was his filing date [see AR at 73], and the ALJ also cites September 18, 2008, as plaintiff s DIB filing date. [See AR at 14.] 2 1 adequate to support the conclusion. Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 2 1257. When determining whether substantial evidence exists to support the Commissioner s 3 decision, the Court examines the administrative record as a whole, considering adverse as well 4 as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th 5 Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court 6 must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 7 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258. 8 9 IV. 10 THE EVALUATION OF DISABILITY 11 Persons are disabled for purposes of receiving Social Security benefits if they are unable 12 to engage in any substantial gainful activity owing to a physical or mental impairment that is 13 expected to result in death or which has lasted or is expected to last for a continuous period of at 14 least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257. 15 16 A. THE FIVE-STEP EVALUATION PROCESS 17 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 18 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 19 828 n.5 (9th Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must 20 determine whether the claimant is currently engaged in substantial gainful activity; if so, the 21 claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in 22 substantial gainful activity, the second step requires the Commissioner to determine whether the 23 claimant has a severe impairment or combination of impairments significantly limiting his ability 24 to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. 25 If the claimant has a severe impairment or combination of impairments, the third step requires 26 the Commissioner to determine whether the impairment or combination of impairments meets or 27 equals an impairment in the Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 404, 28 Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. 3 1 If the claimant s impairment or combination of impairments does not meet or equal an impairment 2 in the Listing, the fourth step requires the Commissioner to determine whether the claimant has 3 sufficient residual functional capacity to perform his past work; if so, the claimant is not disabled 4 and the claim is denied. Id. The claimant has the burden of proving that he is unable to perform 5 past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie 6 case of disability is established. The Commissioner then bears the burden of establishing that 7 the claimant is not disabled, because he can perform other substantial gainful work available in 8 the national economy. The determination of this issue comprises the fifth and final step in the 9 sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 10 F.2d at 1257. 11 12 B. THE ALJ S APPLICATION OF THE FIVE-STEP PROCESS 13 In this case, at step one, the ALJ found that plaintiff had not engaged in any substantial 14 gainful activity since his alleged disability onset date, July 19, 2006. [AR at 16.]2 At step two, the 15 ALJ concluded that plaintiff has the severe impairments of mild right shoulder impingement 16 syndrome, mild cervical degenerative disc disease, and cervical spine multilevel disc bulges. [Id.] 17 At step three, the ALJ determined that plaintiff s impairments do not meet or equal any of the 18 impairments in the Listing. [AR at 17.] The ALJ further found that plaintiff retained the residual 19 functional capacity ( RFC )3 to perform light work as defined in 20 C.F.R. §§ 404.1567(b), 20 416.967(b),4 except that plaintiff should avoid overhead reaching with the right upper extremity. 21 [AR at 18.] At step four, the ALJ concluded that plaintiff was not capable of performing his past 22 23 24 2 The ALJ concluded that plaintiff meets the insured status requirements of the Social Security Act through December 31, 2011. [AR at 16.] 3 25 26 27 28 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 20 C.F.R. §§ 404.1567(b), 416.967(b) define light work as work involving lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds and requiring a good deal of walking or standing or sitting most of the time with some pushing and pulling of arm or leg controls. 4 1 relevant work. [AR at 22.] At step five, the ALJ found, based on the vocational expert s testimony 2 and the application of the Medical-Vocational Guidelines, that there are jobs that exist in 3 significant numbers in the national economy that [plaintiff] can perform. [AR at 23.] Accordingly, 4 the ALJ determined that plaintiff is not disabled. [Id.] 5 6 V. 7 THE ALJ S DECISION 8 Plaintiff contends that the ALJ failed to properly consider the opinions of Dr. Edward G. 9 Stokes, plaintiff s treating physician, contained in two reports dated March 26, 2009, as to: (1) 10 plaintiff s work restrictions, and (2) the ultimate issue of whether plaintiff is disabled. [Joint 11 Stipulation ( JS ) at 4-12.] As set forth below, the Court respectfully disagrees with plaintiff and 12 affirms the ALJ s decision. 13 14 A. TREATING PHYSICIAN OPINION ON PLAINTIFF S WORK RESTRICTIONS 15 In evaluating medical opinions, the case law and regulations distinguish among three types 16 of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but 17 do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the 18 claimant (non-examining physicians). See 20 C.F.R. §§ 404.1502, 416.927; Lester, 81 F.3d at 19 830. Generally, the opinions of treating physicians are given greater weight than those of other 20 physicians, because treating physicians are employed to cure and therefore have a greater 21 opportunity to know and observe the claimant. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007); 22 Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 23 However, an ALJ need not give controlling weight to the opinion of a treating physician. 24 Batson v. Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1194-95 (9th Cir. 2004). The treating 25 physician s opinion is not ... necessarily conclusive as to ... the ultimate issue of disability. 26 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citations omitted). The ALJ may 27 disregard the treating physician s opinion whether or not that opinion is contradicted. Batson, 359 28 F.3d at 1195 (quoting Magallanes, 881 F.2d at 751). Where a treating physician s opinion does 5 1 not contradict other medical evidence, the ALJ must provide clear and convincing reasons to 2 discount it. See Lester, 81 F.3d at 830; Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) 3 ( The administrative law judge is not bound by the uncontroverted opinions of the claimant s 4 physicians on the ultimate issue of disability, but he cannot reject them without presenting clear 5 and convincing reasons for doing so. ) (internal citation and quotations omitted). Where a treating 6 physician s opinion conflicts with other medical evidence, the ALJ must set forth specific and 7 legitimate reasons supported by substantial evidence in the record to reject it. See Lester, 81 F.3d 8 at 830; see also McAllister v. Sullivan, 888 F.2d 599, 602-03 (9th Cir. 1989) (remand warranted 9 where ALJ failed to give adequately specific and legitimate reasons for disregarding treating 10 physician s testimony that the claimant was disabled due to personality disorder). The ALJ can 11 meet the requisite specific and legitimate standard by setting out a detailed and thorough 12 summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and 13 making findings. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). The ALJ must set forth 14 his own interpretations and explain why they, rather than the [treating] doctors , are correct. Id. 15 The record shows that Dr. Edward G. Stokes, an orthopedic surgeon [see AR at 582], saw 16 plaintiff, on average, on a monthly basis between July 2007 and February 2009. [See AR at 318- 17 70, 431-46.] On July 30, 2007, Dr. Stokes performed an initial evaluation on plaintiff and referred 18 him for an MRI of his right shoulder. [AR at 363-70.] The MRI was performed on August 7, 2007, 19 and on August 30, 2007, Dr. Stokes found that the MRI scan of the right shoulder ... revealed mild 20 impingement present, and diagnosed plaintiff with right shoulder impingement syndrome and 21 sleep disorder. [AR at 358-62.] On October 15, 2007, Dr. Stokes referred plaintiff for an MRI of 22 his cervical spine, which was performed on October 26, 2007. [See AR at 349-54.] Upon 23 plaintiff s next examination, on November 8, 2007, Dr. Stokes diagnosed plaintiff with [m]ultiple 24 cervical disc bulges and [m]yofascial sprain, cervical spine with multilevel disc bulges. [AR at 25 348.] Thereafter, Dr. Stokes consistently diagnosed plaintiff with right shoulder impingement 26 syndrome, mild, multiple cervical disc bulges, myofascial sprain, cervical spine with multilevel 27 disc bulges, and sleep disorder. [See AR at 318-25, 327-30, 332-40, 345, 431-33, 435-46.] 28 6 1 On March 26, 2009, Dr. Stokes examined plaintiff again and completed a Primary Treating 2 Physician s Maximum Medical Improvement Report ( MMI Report ). [See AR at 574-82.] He 3 diagnosed plaintiff with [m]ild impingement syndrome of the right shoulder, [m]yofascial 4 sprain/strain of the cervical spine with 2 mm disc bulges at C3-C4 and C4-C5, and 2-3 mm disc 5 bulge at C5-C6, and [s]leep disorder. [AR at 579.] Dr. Stokes opined that plaintiff has received 6 maximum medical improvement with regard to his right shoulder injury, and that his permanent 7 disability is directly and totally the result of his work[-]related injury occurring on July 19, 2006 and 8 from July 20, 2006 to August 16, 2006. [AR at 580.] He also opined that, among other things, 9 plaintiff is limited from repetitive pushing and pulling with the right upper extremity, is able to 10 perform climbing, balancing, stooping, kneeling, crouching, crawling, reaching and twisting on an 11 occasional basis, and may perform handling, fingering, feeling, seeing, hearing and speaking on 12 a frequent basis. [AR at 581.] Dr. Stokes also completed a Primary Treating Physician s 13 Supplemental Report ( Supplemental Report ) on March 26, 2009, in which he concluded that 14 plaintiff has reached a Permanent and Stationary plateau with the following [objective] factors of 15 disability : loss of range of motion in the cervical spine and right shoulder ( abnormalities noted 16 on MRI scan[s] of the cervical spine and right shoulder), loss of sensation in the right index and 17 middle fingers, and loss of grip strength in his right hand. [See AR at 583-86.] Dr. Stokes 18 further concluded that plaintiff has the following work restrictions: [his] cervical spine requires a 19 disability precluding repetitive motions of the neck or spine, which contemplates [that plaintiff] 20 has lost approximately 50% of preinjury capacity for flexing, extending, bending and rotating the 21 neck or spine ; and [his] right upper extremity requires a disability precluding forceful activities, 22 which contemplates [that plaintiff] has lost approximately 50% of preinjury capacity for lifting, 23 pushing, pulling, grasping, pinching, holding, torquing, and performing other activities of 24 comparable physical effort. [AR at 584.] Dr. Stokes further opined that the [f]ailure to abide by 25 these work restrictions will likely result in further injury to the cervical spine and right shoulder, 26 further exacerbation of the condition, and further disability. [Id.] 27 In the decision, the ALJ summarized Dr. Stokes treatment records for plaintiff, noting that 28 Dr. Stokes treated plaintiff regularly for a sleep disorder, mild right shoulder impingement 7 1 syndrome, myofascial strain of the cervical spine and cervical spine multilevel disc bulges. [AR 2 at 19.] The ALJ also made note of the MRIs performed on plaintiff s right shoulder and cervical 3 spine, and their results, as well as other reports by Dr. Stokes in the record. [See id.] The ALJ 4 stated that the March 26, 2009, reports indicated [plaintiff] could perform a modified range of light 5 work, and that the RFC determination was supported by the medical opinions of Dr. Stokes in 6 March 2009. [AR at 19, 22.] Otherwise, the ALJ did not discuss any of Dr. Stokes specific 7 findings as to plaintiff s work restrictions contained in the March 26, 2009, reports. [See AR at 18- 8 22.] 9 The ALJ s consideration of Dr. Stokes March 26, 2009, opinions regarding plaintiff s work 10 restrictions was inadequate. While the ALJ stated that the RFC determination was supported by 11 Dr. Stokes opinions in the March 26, 2009, reports, the ALJ excluded Dr. Stokes specific findings 12 in those reports -- such as a loss of approximately 50% of preinjury capacity for flexing, extending, 13 bending and rotating the neck or spine and a loss of approximately 50% of preinjury capacity for 14 lifting, pushing, pulling, grasping, pinching, holding, torquing, and performing other activities of 15 comparable physical effort -- from the RFC determination. Thus, it appears that the ALJ implicitly 16 rejected those findings without providing any reason for doing so, which was error. See 20 C.F.R. 17 §§ 404.1527(d), 416.927(d) (the ALJ is required to provide an explicit explanation, supported by 18 evidence in the record, of the weight given to a treating physician s medical opinions); see also 19 Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988) (in disregarding the findings of a treating 20 physician, the ALJ must provide detailed, reasoned and legitimate rationales and must relate any 21 objective factors he identifies to the specific medical opinions and findings he rejects ). 22 Defendant contends, however, that any error by the ALJ in failing to discuss Dr. Stokes 23 specific findings was harmless. [JS at 18-20.] An error is harmless where it is inconsequential 24 to the ultimate nondisability determination. Robbins v. Comm r Soc. Sec. Admin., 648 F.3d 721, 25 728 (9th Cir. 2011) (quoting Stout v. Comm r of Social Sec. Admin., 454 F.3d 1050, 1055-56 (9th 26 Cir. 2006)). By contrast, an error is not harmless where there is a reasonable possibility that [the 27 new evidence] would have changed the outcome of the present case. See Booz v. Sec y of 28 Health and Human Servs., 734 F.2d 1378, 1381 (9th Cir. 1984). [T]he burden is on the party 8 1 attacking the agency s determination to show that prejudice resulted from the error. McLeod v. 2 Astrue, 640 F.3d 881, 887 (9th Cir. 2011) (citing Shinseki v. Sanders, 556 U.S. 396, 409, 129 3 S.Ct. 1696, 173 L.Ed.2d 532 (2009)). Where harmfulness of the error is not apparent from the 4 circumstances, the party seeking reversal must explain how the error caused harm. McLeod, 640 5 F.3d at 887. Nevertheless, the reviewing court can remand where the circumstances of the case 6 show a substantial likelihood of prejudice from the error -- [m]ere probability is not enough. Id. 7 at 888. 8 Here, other than pointing out the discrepancies between Dr. Stokes opinions and the ALJ s 9 RFC determination for plaintiff, plaintiff does not attempt to show how the ALJ s error resulted in 10 prejudice. [See JS at 11.] Nevertheless, the Court reviews the circumstances of the case to 11 determine whether there is a substantial likelihood of prejudice. See McLeod, 640 F.3d at 888. 12 At step five, the ALJ found, based on the vocational expert s testimony and application of 13 the Medical-Vocational Guidelines, that plaintiff can perform the job of battery inspector, Dictionary 14 of Occupational Titles ( DOT ) No. 727.687-062. [AR at 23.] At the hearing on May 19, 2010, the 15 vocational expert ( VE ) testified that a hypothetical person with all of the limitations the ALJ found 16 plaintiff has, and without use of the right upper extremity, can perform the job of battery inspector. 17 [See AR at 18, 61-62.] Thus, despite the ALJ s error in implicitly rejecting Dr. Stokes March 26, 18 2009, opinions regarding plaintiff s right upper extremity work restrictions, that error was 19 inconsequential to the ultimate disability determination.5 20 Moreover, the circumstances of the instant case do not raise a substantial likelihood that 21 plaintiff was prejudiced by the ALJ s failure to account for Dr. Stokes opinions regarding plaintiff s 22 alleged limitations other than those related to his right upper extremity. First, while Dr. Stokes 23 opined that plaintiff has lost approximately 50% of [his] preinjury capacity for flexing, extending, 24 5 25 26 27 28 While Dr. Stokes opined that plaintiff is only able to perform reaching on an occasional basis [AR at 581], the job of battery inspector requires reaching frequently, i.e., one-third to twothirds of the time. [DOT No. 727.687-062.] Nevertheless, Dr. Stokes identified problems and limitations only as to plaintiff s right upper extremity, and the VE testified that an individual who is precluded from using his right upper extremity can perform the job of battery inspector. [See AR at 62, 577-79, 584.] Moreover, the VE testified that his testimony was in conformance with the DOT [see AR at 63], and plaintiff does not dispute this. 9 1 bending and rotating the neck or spine and should be precluded from repetitive motions of the 2 neck or spine [AR at 584], the DOT s description of the job of battery inspector gives no indication 3 that the job requires repetitive motions of, or any significant flexing, extending, bending, or rotating 4 of, the neck or spine. See DOT No. 727.687-062; see also Pinto v. Massanari, 249 F.3d 840, 845- 5 46 (9th Cir. 2001) ( the best source for how a job is generally performed is usually the Dictionary 6 of Occupational Titles ) (internal citation omitted); Johnson v. Shalala, 60 F.3d 1428, 1435 (9th 7 Cir. 1995) (the DOT raises a presumption as to job classification requirements). Instead, the DOT 8 reflects that the job does not require any climbing, balancing, stooping, kneeling, crouching, or 9 crawling, each of which would involve some neck and spine movement. DOT No. 727.687-062. 10 Similarly, while Dr. Stokes consistently diagnosed plaintiff with sleep disorder,6 Dr. Marc 11 Nehorayan, a psychiatrist to whom plaintiff was referred by Dr. Stokes [see AR at 313, 369], 12 completed a comprehensive psychiatric report for plaintiff on October 24, 2007, in which he stated 13 that plaintiff did not identify experiencing any daytime somnolence and identified being alert 14 during the course of the day without any indications of either falling asleep or anything out of the 15 ordinary in regard to his routine. [AR at 309.] In the report, Dr. Nehorayan opined, [i]t appears 16 that [plaintiff s] general medical condition is the primary cause associated with the sleep deficits 17 that he continues to endure, and Dr. Stokes adopted this opinion in his March 26, 2009, MMI 18 Report. [See AR at 314, 575.] Moreover, while plaintiff testified at the hearing that he has 19 difficulty sleeping [AR at 50], he did not mention lack of sleep when the ALJ asked what keeps him 20 from working [see AR at 44], and he also did not allege that he has problems staying awake during 21 the day. [See AR at 37-59.] Thus, despite Dr. Stokes consistent diagnosis, neither plaintiff nor 22 his physicians assert that plaintiff has any work limitations based on his alleged sleep disorder. 23 Based on the foregoing, there is not more than a mere probability that the ALJ s implicit rejection 24 of Dr. Stokes diagnosis of sleep disorder and opinions regarding plaintiff s neck and spine 25 limitations resulted in prejudice to plaintiff. 26 27 6 28 Sleep disorder is not among the severe impairments that the ALJ found that plaintiff has. [See AR at 16.] Plaintiff does not raise this issue in the Joint Stipulation. [See JS at 4-12, 20-21.] 10 1 The ALJ s error in failing to discuss Dr. Stokes specific findings was harmless. Thus, 2 remand is not warranted on this issue. See McLeod, 640 F.3d at 888; Robbins, 648 F.3d at 728. 3 4 B. TREATING PHYSICIAN OPINION ON DISABILITY 5 Plaintiff also contends that the ALJ failed to properly consider Dr. Stokes opinions in the 6 March 26, 2009, reports as to the ultimate issue of whether plaintiff is disabled.7 [JS at 10-11.] 7 On January 16, 2009, plaintiff saw Dr. Payam Moazzaz, an orthopaedic surgeon, for an 8 orthopaedic consultation, which included both an orthopaedic examination and a neurovascular 9 examination. [AR at 392-97.] Dr. Moazzaz made the following findings as to plaintiff s neck: No 10 scars. Normal lordosis. No scoliosis. There is tenderness to palpation in the paraspinal 11 musculature, bilaterally. No muscle spasm appreciated. Full pain-free range of motion. Spurling 12 and Hoffman tests negative bilaterally. [AR at 394.] Dr. Moazzaz diagnosed plaintiff, in relevant 13 part, with mild degenerative disc disease of the cervical spine and concluded that while plaintiff 14 presents with severe neck pain ... [his own] exam [was] inconsistent with [plaintiff s] previous 15 studies. His reports of severe pain and abnormal neurologic sensations are inconsistent with his 16 objective findings. [AR at 396.] Dr. Moazzaz opined, in relevant part, that plaintiff can lift and 17 carry 50 pounds occasionally and 25 pounds frequently, i.e., that he can perform medium work,8 18 that he can climb, stoop, kneel, and crouch frequently, that [t]here are no restrictions with 19 overhead activity, and that he does not require the use of any assistive device. [AR at 396-97.] 20 In the decision, the ALJ gave minimal weight to Dr. Stokes[ ] medical opinions regarding 21 [plaintiff] being totally disabled on a temporary basis since July 2006 for the following reasons: 22 23 24 25 26 27 28 7 As the Court determined supra that any error by the ALJ in rejecting Dr. Stokes opinions regarding plaintiff s right upper extremity work restrictions was harmless, any error by the ALJ in failing to consider Dr. Stokes opinion on the ultimate issue of whether plaintiff is disabled due to his right upper extremity would also be harmless. Thus, the Court need not address the issue of whether the ALJ erred by rejecting Dr. Stokes opinion on whether plaintiff is disabled due to his right upper extremity limitations. 8 20 C.F.R. §§ 404.1567(c), 416.967(c) define medium work as work that involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. 11 1 (1) Dr. Stokes examinations and the results of diagnostic testing did not support, for Social 2 Security purposes, [that plaintiff] was unable to work ; (2) Dr. Stokes did not have [plaintiff] 3 evaluated for possible ... neck surgery ; (3) Dr. Stokes opinions were inconsistent with the [state 4 agency] determinations and the orthopedic [consultative examiner] medical opinions ; and (4) 5 disability determination[s] made for other agencies are not binding on the undersigned. [AR at 6 22.] 7 The ALJ s first and second reasons for rejecting Dr. Stokes opinion regarding plaintiff s 8 neck impairment were improper. The ALJ did not state how Dr. Stokes examinations of plaintiff 9 and the diagnostic tests contradicted Dr. Stokes opinion that plaintiff is disabled by virtue of his 10 cervical spine [see AR at 584], and thus the first reason does not reach the level of specificity 11 required to reject the opinion of a treating physician. See Embrey, 849 F.2d at 421-23; Reddick, 12 157 F.3d at 725. Moreover, as to the second reason, a treating physician s recommendations for 13 conservative treatment instead of surgery do not constitute substantial evidence that a claimant 14 is not disabled. See Shaw v. Chater, 221 F.3d 126, 135 (2d Cir. 2000); but see Thomas v. Astrue, 15 2011 WL 4402958, at *6 (E.D. Pa. Sept. 22, 2011) (that treating physician had not recommended 16 surgery constituted substantial evidence to support the ALJ s decision not to afford controlling or 17 much weight to treating physician s opinion that claimant was disabled). 18 Nevertheless, the ALJ s third and fourth reasons for assigning minimal weight to Dr. Stokes 19 opinion were proper. As to the third reason, where an examining physician gives an opinion that 20 differs from that of a treating physician, but is based on independent clinical findings, the 21 examining physician s opinion may constitute substantial evidence and it is then solely the 22 province of the ALJ to resolve the conflict. See Andrews, 53 F.3d at 1041. Here, Dr. Moazzaz 23 performed an orthopaedic examination and a neurological examination on plaintiff, found that 24 plaintiff has [f]ull pain-free range of motion in his neck, and concluded that plaintiff can perform 25 medium work. By contrast, Dr. Stokes found that plaintiff has a loss of range of motion in his 26 cervical spine, and opined that plaintiff s cervical spine requires a disability precluding repetitive 27 motions of the neck or spine, which contemplates [that plaintiff] has lost approximately 50% of 28 preinjury capacity for flexing, extending, bending and rotating the neck or spine. As there was 12 1 a conflict between Dr. Moazzaz s and Dr. Stokes medical findings as to plaintiff s neck and spine, 2 the ALJ s resolution of the conflict in favor of Dr. Moazzaz s conclusion that plaintiff can perform 3 medium work is supported by substantial evidence. See Allen v. Heckler, 749 F.2d 577, 579 (9th 4 Cir. 1984) (where consultative examiner s medical findings and conclusion on ultimate issue of 5 disability differed from those of treating physician, there was a conflict in the medical reports and 6 testimony, and thus ALJ s resolution of the conflict in favor of consultative examiner s conclusion 7 on disability was supported by substantial evidence).9 8 Lastly, the ALJ correctly stated that disability determinations made for other agencies are 9 not binding on the Commissioner. The determination of a claimant s ultimate disability is reserved 10 to the Commissioner. See 20 C.F.R. § 404.1527(e)(1) ( We are responsible for making the 11 determination or decision about whether you meet the statutory definition of disability. ); see also 12 20 C.F.R. § 416.904 ( A decision by any nongovernmental agency or any other governmental 13 agency about whether you are disabled or blind is based on its rules and is not our decision about 14 whether you are disabled or blind. We must make a disability or blindness determination based 15 on social security law. Therefore, a determination made by another agency that you are disabled 16 or blind is not binding on us. ). Moreover, [a]lthough a treating physician s opinion is generally 17 afforded the greatest weight in disability cases, it is not binding on an ALJ with respect to the 18 existence of an impairment or the ultimate determination of disability. Ukolov v. Barnhart, 420 19 F.3d 1002, 1004 (9th Cir. 2005) (internal quotations and citations omitted). Dr. Stokes March 26, 20 2009, MMI Report and Supplemental Report appear to have been made for workers 21 compensation purposes. [See AR at 574, 583.] Thus, the ALJ properly cited this reason to assign 22 23 24 25 26 27 28 9 On February 4, 2009, and February 11, 2009, two different non-examining state agency physicians found that plaintiff can perform medium work. [See AR at 407-11, 428-29.] While the report of a non-examining, non-treating physician ... is not substantial evidence when contradicted by all other evidence in the record, it may constitute substantial evidence where it is consistent with other evidence. See Magallanes, 881 F.2d at 752 (internal citations omitted). As the state agency physicians conclusions regarding plaintiff s ability to work are consistent with Dr. Moazzaz s conclusion that plaintiff can perform medium work, the state agency physicians determinations also constituted a specific and legitimate reason to reject Dr. Stokes opinion on the issue of whether plaintiff is disabled due to impairments of his neck and spine. 13 1 minimal weight to Dr. Stokes opinion, as contained in those reports, on the ultimate issue of 2 plaintiff s disability. 3 The ALJ gave specific and legitimate reasons supported by substantial evidence to reject 4 Dr. Stokes opinion that plaintiff is disabled due to his complaints of neck and spine problems. 5 Therefore, the Court must affirm. See Moncada, 60 F.3d at 523 ( We must affirm if we determine 6 that substantial evidence supports the findings of the [ALJ] and that the ALJ applied the correct 7 legal standards. ). 8 9 VI. 10 CONCLUSION 11 12 13 14 15 16 IT IS HEREBY ORDERED that: 1. plaintiff s request for reversal, or in the alternative, remand, is denied; and 2. the decision of the Commissioner is affirmed. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. 17 18 DATED: February 9, 2012 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 14

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