Silvano Jacome Venerozo v. Michael J. Astrue, No. 5:2010cv01663 - Document 18 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. (ib)

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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SILVANO JACOME VENEROZO, 12 13 14 15 16 Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. ED CV 10-01663 RZ MEMORANDUM OPINION AND ORDER 17 Plaintiff Silvano Jacome Venerozo contends that the Social Security 18 Commissioner wrongly denied his claim for disability benefits. Plaintiff argues that the 19 Administrative Law Judge ( ALJ ) improperly evaluated the opinion of his treating 20 opinion, erred in determining his residual functional capacity, and failed to adequately 21 support the determination that Plaintiff could return to his past relevant work. The Court 22 disagrees, as explained below. 23 Plaintiff first argues that the ALJ erred in rejecting the opinion of his treating 24 physician, Dr. Rada. Dr. Rada opined, among other things, that Plaintiff could lift no more 25 than ten pounds; could stand, walk or sit for no more than two hours during an eight-hour 26 workday; could occasionally twist and stoop but never crouch or climb stairs or ladders; 27 and would likely be absent from work about three times per month. (AR 210-12.) The 28 ALJ rejected Dr. Rada s opinion because it was exaggerated in the extreme in its limits, 1 grossly accommodative and indulgent, and not in the least supported by the records. 2 The ALJ also accused Dr. Rada of having obvious financial motivation, a finding the 3 Commissioner concedes was improper. (AR 16.) The ALJ s other reasons are strongly 4 worded, but his finding that the evidence of record undermines Dr. Rada s opinion is 5 supported by substantial evidence. No other medical source assessed Plaintiff with such 6 extreme limitations. As the ALJ noted, examining neurologist Dr. Maze found that 7 Plaintiff had experienced considerable improvement after his stroke and opined that he 8 was capable of performing medium work with no restrictions. (AR 189-90.) The State 9 agency reviewing physicians also assessed Plaintiff with a much less restrictive residual 10 functional capacity than did Dr. Rada. (AR 192-97, 207-08.) Moreover, Dr. Rada s own 11 treatment notes, though nearly illegible, do not appear to support his assessment of 12 Plaintiff s limitations. (See AR 166-79, 200-06.) Accordingly, the ALJ properly rejected 13 Dr. Rada s opinion because he provided at least one valid reason for doing so. See 14 Carmickle v. Commissioner, 533 F.3d 1155, 1162-63 (9th Cir. 2008) (holding that ALJ 15 properly rejected claimant s credibility despite providing two illegitimate reasons for doing 16 so, because two other reasons were valid); Andrews v. Shalala, 53 F.3d 1035, 1041 (9th 17 Cir. 1995) ( Where the opinion of the claimant s treating physician is contradicted, and the 18 opinion of a nontreating source is based on independent clinical findings that differ from 19 those of the treating physician, the opinion of the nontreating source may itself be 20 substantial evidence; it is then solely the province of the ALJ to resolve the conflict. ). 21 Plaintiff also argues that the ALJ erred in considering other medical evidence 22 in assessing Plaintiff s residual functional capacity. Specifically, Plaintiff contends that 23 the ALJ failed to consider the opinion of a physical therapist and of another treating 24 physician, Dr. Lo. A physical therapist is not an acceptable medical source, however, 25 and an ALJ must provide an explanation only when he rejects significant probative 26 evidence. 20 C.F.R. § 416.913(a); Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 27 1984). Plaintiff has not demonstrated that the physical therapist s assessment constitutes 28 significant or probative evidence. The physical therapist s observations about Plaintiff s -2- 1 functionality were similar to Dr. Maze s, yet Dr. Maze still opined that Plaintiff was 2 capable of performing medium work. (See AR 183-84, 187-90.) As for Dr. Lo, the record 3 contains only one treatment note from him and he is Dr. Rada s colleague. (AR 202.) 4 Dr. Lo did not assess Plaintiff s limitations in functional terms, and even though he 5 extend[ed] [Plaintiff s] disability [for] 8 weeks, he did so at Plaintiff s request and 6 provided no indication that he expected Plaintiff to remain disabled for at least twelve 7 months. Accordingly, the ALJ s failure to specifically discuss Dr. Lo s opinion was 8 harmless error. See Stout v. Commissioner, 454 F.3d 1050, 1056 (9th Cir. 2006). 9 Finally, Plaintiff argues that the ALJ did not adequately explain his 10 determination that Plaintiff could return to his past relevant work as an auto mechanic. 11 Although the ALJ s explanation of this finding was cursory, any error was harmless. The 12 ALJ determined that Plaintiff retained the residual functional capacity to perform the full 13 range of medium work. The DICTIONARY 14 occupation of automobile mechanic involves medium work. 15 OCCUPATIONAL TITLES § 620.261-010. Accordingly, the ALJ did not err in determining 16 that Plaintiff could perform his past relevant work. 19 OCCUPATIONAL TITLES explains that the DICTIONARY affirmed. IT IS SO ORDERED. 20 21 DATED: November 29, 2011 22 23 24 OF In accordance with the foregoing, the decision of the Commissioner is 17 18 OF RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 25 26 27 28 -3-

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