Joann Ambrose v. Michael J Astrue, No. 8:2012cv00954 - Document 20 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman: Plaintiff Joann Ambrose seeks judicial review of the Commissioner's final decision denying her application for disability insurance benefits (DIB). For the reasons stated below, t he decision of the Commissioner is affirmed and the matter is dismissed with prejudice. (See document for details.0 For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. (rla)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 SOUTHERN DIVISION 8 9 JOANN AMBROSE, 10 Plaintiff, 11 v. 12 13 14 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. SACV 12-00954-MLG MEMORANDUM OPINION AND ORDER 16 17 Plaintiff Joann Ambrose seeks judicial review of the Commissioner s 18 final decision denying her application for disability insurance benefits 19 ( DIB ). For the reasons stated below, the decision of the Commissioner 20 is affirmed and the matter is dismissed with prejudice. 21 22 I. Background 23 Plaintiff was born on May 25, 1950, and was 57 years old at the 24 time she filed her application for benefits. (Administrative Record 25 ( AR ) at 187.) She has a high school education and has relevant work 26 experience as a medical biller and medical billing manager. (AR at 168, 27 173.) Plaintiff filed her DIB application on February 12, 2008, alleging 28 disability beginning January 10, 2003, due to degenerative disc disease 1 1 of the cervical spine, right and left shoulder pain, left hand numbness, 2 and degenerative joint disease of the right knee. (AR at 156-57, 167.) 3 Plaintiff s application was denied initially on April 30, 2008 and 4 upon reconsideration on August 29, 2008. (AR at 83-87, 89-94.) An 5 administrative hearing was held on May 11, 2010, before Administrative 6 Law Judge ( ALJ ) Wendy Weber. Plaintiff, represented by counsel, 7 testified, as did a medical expert and a vocational expert. (AR at 49- 8 80.) 9 On July 10, 2010, the ALJ issued an unfavorable decision. (AR at 10 34-42.) The ALJ found that the medical evidence established that 11 Plaintiff suffered from the following severe impairments: multi-level 12 degenerative disc disease of the cervical spine without radiculopathy, 13 bulging discs in the lumbar spine, rotator cuff tear of the left 14 shoulder, tendinitis of the right shoulder, and chondromalacia and 15 degenerative joint disease of the right knee. (AR at 36.) The ALJ 16 determined that Plaintiff s impairments did not meet, and were not 17 medically equal to, one of the listed impairments in 20 C.F.R., Part 18 404, Subpart P, Appendix 1. (AR at 37.) The ALJ further found that 19 Plaintiff retained the following residual functional capacity ( RFC ): 20 lift and carry twenty pounds occasionally and ten pounds 21 frequently with the right upper extremity but only carry ten 22 pounds occasionally and less than ten pounds frequently with 23 the left upper extremity; sit for six hours and stand or walk 24 for six hours during an eight-hour work day; only occasionally 25 perform pedal operations with the right lower extremity; never 26 climb ladders, ropes, or scaffolds; only occasionally climb 27 ramps and stairs; only occasionally stoop, crouch, or kneel; 28 never walk on uneven terrain; 2 never reach at or above 1 shoulder-level or perform forceful grasping or torquing with 2 the left upper extremity; and only frequently flex, extend, or 3 move side-to-side with the neck. 4 (AR at 37.) 5 The ALJ concluded that Plaintiff was capable of performing her past 6 relevant 7 therefore Plaintiff was not disabled within the meaning of the Social 8 Security Act. See 20 C.F.R. § 416.920(f). (AR at 30-31.) work as a medical coder/biller and office manager, and 9 On May 1, 2012, the Appeals Council denied review. (AR at 1-4.) 10 Plaintiff then timely commenced this action for judicial review. On 11 December 21, 2012, the parties filed a Joint Stipulation ( Joint Stip. ) 12 of disputed facts and issues. Plaintiff contends that the ALJ erred by 13 failing to: (1) perform a proper credibility analysis; (2) consider the 14 statement of Plaintiff s husband; and (3) give proper weight to the 15 opinion of three of Plaintiff s treating physicians. (Joint Stip. at 2- 16 3.) Plaintiff seeks reversal of the Commissioner s denial of her 17 application and payment of benefits or, in the alternative, remand for 18 a new administrative hearing. (Joint Stip. at 31.) The Commissioner 19 requests that the ALJ s decision be affirmed. (Joint Stip. at 31-32.) 20 21 22 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 23 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 24 decision must be upheld unless the ALJ s findings are based on legal 25 error or are not supported by substantial evidence in the record as a 26 whole. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Batson v. 27 Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Parra 28 v. 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 10 the evidence can support either affirming or reversing the ALJ s 11 conclusion, the reviewing court may not substitute its judgment for 12 that of the ALJ. Robbins, 466 F.3d at 882. and the evidence that detracts from the Commissioner s 13 14 15 16 III. Discussion A. The ALJ Properly Evaluated Plaintiff s Subjective Symptom Testimony 17 Plaintiff contends that the ALJ erred by failing to provide clear 18 and convincing reasons for discounting her subjective symptom testimony. 19 (Joint Stip. at 3.) To determine whether a claimant s testimony about 20 subjective pain or symptoms is credible, an ALJ must engage in a two- 21 step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) 22 (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). 23 First, the ALJ must determine whether the claimant has presented 24 objective medical evidence of an underlying impairment which could 25 reasonably be expected to produce the alleged pain or other symptoms. 26 Lingenfelter, 504 F.3d at 1036. [O]nce the claimant produces objective 27 medical evidence of an underlying impairment, an adjudicator may not 28 reject a claimant s subjective complaints based solely on a lack of 4 1 objective medical evidence to fully corroborate the alleged severity of 2 pain. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). 3 To the extent that an individual s claims of functional limitations and 4 restrictions due to alleged pain is reasonably consistent with the 5 objective 6 claimant s allegations will be credited. SSR 96-7p, 1996 WL 374186 at *2 7 (explaining 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4)).1 medical evidence and other evidence in the case, the 8 Unless there is affirmative evidence showing that the claimant is 9 malingering, the ALJ must provide specific, clear and convincing reasons 10 for discrediting a claimant s complaints. Robbins, 466 F.3d at 883. 11 General findings are insufficient; rather, the ALJ must identify what 12 testimony is not credible and what evidence undermines the claimant s 13 complaints. Reddick, 157 F.3d at 722 (quoting Lester v. Chater, 81 F.3d 14 821, 834 (9th Cir. 1996)). The ALJ must consider a claimant s work 15 record, 16 knowledge of claimant s limitations, aggravating factors, 17 restrictions 18 claimant s daily activities. Smolen v. Chater, 80 F.3d 1273, 1283-84 & 19 n.8 (9th Cir. 1996). The ALJ may also consider an unexplained failure to 20 seek treatment or follow a prescribed course of treatment and employ 21 other ordinary techniques of credibility evaluation. Id. (citations 22 omitted). observations caused of by medical providers symptoms, effects and of third parties with functional medication, and the 23 Plaintiff testified at the administrative hearing to the following 24 symptoms and functional limitations: she has difficulty looking up or 25 26 27 28 1 The Secretary issues Social Security Rulings to clarify the Secretary s regulations and policy .... Although SSRs are not published in the federal register and do not have the force of law, [the Ninth Circuit] nevertheless give[s] deference to the Secretary s interpretation of its regulations. Bunnell, 947 F.2d at 346 n.3. 5 1 down or sitting because of pain in her neck; she can only sit or stand 2 for about 15 minutes and walk for 10 minutes; she can lift only about 3 five pounds; she has stiffness and pain in her neck which radiates into 4 her shoulder, back and hand; she has pain in her knees; she has trouble 5 sleeping at night because of the pain; and she must lie down or recline 6 several times a day for up to a third of the day to relieve the pain in 7 her knees. (AR at 53-62.) 8 The ALJ found that Plaintiff s medical impairments could reasonably 9 be expected to produce the alleged symptoms. (AR at 41.) The ALJ was 10 therefore required to provide specific, clear and convincing reasons for 11 rejecting Plaintiff s subjective allegations of pain and functional 12 limitations. 13 Plaintiff s testimony, each of which is fully supported by the record. 14 The ALJ noted that Plaintiff s daily activities were inconsistent with 15 her allegations of severe pain and serious functional limitations. 16 Plaintiff reported being able to drive, shop, do some light chores and 17 attend to her personal grooming. In addition, as noted by the ALJ, 18 Plaintiff indicated to the examining orthopedic specialist, Dr. 19 E. Bruce, M.D., that she was able to do all activities of daily living 20 and personal grooming, although she needs to pace her work and avoid 21 heavy lifting. (AR at 40, citing AR at 709.) Although a claimant does 22 not need to be utterly incapacitated in order to be disabled, 23 Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001), the ability to 24 perform certain activities of daily life can support a finding that the 25 claimant s reports of his or her impairment are not fully credible. See 26 Bray v. Comm r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009); 27 Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990) (finding that the 28 claimant s ability to take care of her personal needs, prepare easy The ALJ provided various 6 reasons for discrediting Henry 1 meals, do light housework and shop for some groceries ... may be seen as 2 inconsistent with the presence of a condition which would preclude all 3 work activity ) (citing Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 4 1989)). 5 The ALJ also noted that Plaintiff s claim that she could not walk 6 for more than 10 minutes at a time was inconsistent with recent physical 7 therapy 8 limitation in her ability to walk, and with the opinion of Plaintiff s 9 primary care physician, Dr. Carmela Yacoob, M.D., that Plaintiff could 10 walk frequently, defined as 3-6 hours out of an eight-hour work day. (AR 11 at 40-41, citing AR at 650, 734.) See Smolen, 80 F.3d at 1284 (the ALJ 12 may 13 considering inconsistent statements and whether the claimant has been 14 candid). 15 use reports, ordinary which indicated techniques that of Plaintiff credibility had only evaluation, a mild such as The ALJ also noted that Plaintiff testified that she takes over the 16 counter pain relief medication and herbal supplements, which 17 significantly help her symptoms. (AR at 40, citing AR at 55, 199, 709.) 18 Plaintiff s testimony that her symptoms are greatly alleviated with over 19 the counter pain medication and herbal supplements undermines her 20 statements of disabling pain and serious limitations. See Smolen, 80 21 F.3d at 1284; see also Warre v. Comm r, 439 F.3d 1001, 1006 (9th Cir. 22 2006) ( Impairments that can be controlled effectively with medication 23 are not disabling for purposes of determining eligibility for SSI 24 benefits. ). 25 It is the responsibility of the ALJ to determine credibility and 26 resolve conflicts or ambiguities in the evidence, Magallanes v. Bowen, 27 881 F.2d 747, 750 (9th Cir. 1989), and a reviewing court may not second- 28 guess the ALJ s credibility determination when it is supported by 7 1 substantial evidence in the record, as here. See Fair, 885 F.2d at 604. 2 Accordingly, it was reasonable for the ALJ to rely on the reasons stated 3 above in finding that Plaintiff s subjective testimony regarding the 4 severity of her symptoms was not wholly credible. 5 6 B. The ALJ Properly Considered the Statements of Plaintiff s Husband 7 Plaintiff contends that the ALJ improperly failed to discuss the 8 lay witness testimony offered by her husband. (Joint Stp. at 13.) On 9 June 18, 2008, Plaintiff s husband, Donald G. Ambrose, Jr., filled out 10 a Function Report - Adult - Third Party regarding his knowledge about 11 Plaintiff s daily activities and abilities. Mr. Ambrose reported the 12 following: Plaintiff wakes up at night with pain; he has to help her dry 13 her hair; she can only perform light household chores and must take 14 frequent breaks; she is limited in lifting, standing, reaching, walking, 15 sitting, and using her hands; she can only lift light objects; and she 16 can walk for only about 10 minutes at a time. (AR at 202-209.) 17 A lay witness can provide testimony about Plaintiff s symptoms and 18 limitations. See Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). 19 Lay testimony as to a claimant s symptoms is competent evidence that an 20 ALJ must take into account, unless he or she expressly determines to 21 disregard such testimony and gives reasons germane to each witness for 22 doing so. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); see also 23 Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993). Appropriate 24 reasons include testimony unsupported by the medical record or other 25 evidence and inconsistent testimony. Lewis, 236 F.3d at 512. 26 Here, the ALJ cited Plaintiff s husband s report, noting that 27 Plaintiff s 28 corroborated claims by her of restricted husband s daily report, 8 activities, were which contradicted by were her 1 statements to Dr. Bruce that she was able to perform all activities of 2 daily living. (AR at 40, citing AR at 202-206.) [I]f the ALJ gives 3 germane reasons for rejecting testimony by one witness, the ALJ need 4 only point to those reasons when rejecting similar testimony by a 5 different witness. Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 6 2012) (citing Valentine v. Comm., 574 F.3d 685, 694 (9th Cir. 2009) 7 (holding that because the ALJ provided clear and convincing reasons for 8 rejecting [the claimant s] own subjective complaints, and because [the 9 lay witness s] testimony was similar to such complaints, it follows that 10 the ALJ also gave germane reasons for rejecting [the lay witness s] 11 testimony ). 12 statements regarding her daily activities, it was proper for the ALJ to 13 similarly reject Plaintiff s husband s statements as not fully credible 14 because they were substantially similar to Plaintiff s. 15 Because Furthermore, the unlike ALJ lay appropriately testimony, rejected there is no Petitioner s controlling 16 precedent requiring an ALJ to explicitly address written statements, 17 such as the Function Report - Adult - Third Party form in this case. 18 Indeed, it is clear that an ALJ is not required to discuss every piece 19 of evidence. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 20 (9th Cir. 2003); see also Molina, 674 F.3d at 1114 ( We have not, 21 however, required the ALJ discuss every witness s testimony on a 22 individualized, witness-by-witness basis. ). In this case, the ALJ 23 appropriately considered the written statement provided by Plaintiff s 24 husband. 25 26 27 28 C. The ALJ Accorded Appropriate Weight to the Opinions of Plaintiff s Treating Physicians Plaintiff contends that the ALJ erred in failing to give controlling weight to the opinions of her treating physicians, Drs. 9 1 Wesley Nottage, M.D., Michael Luciano, M.D., and Carmela Yacoob, M.D. 2 (Joint Stip. at 17-30.) For the reasons discussed below, Plaintiff s 3 contention is without merit. 4 1. 5 Dr. Wesley Nottage On September 10, 2005, Dr. Nottage, an orthopedic surgeon, opined 6 that 7 incapable of returning back to her job duties as a billing manager ... 8 providing the job could not be accommodated to avoid prolonged neck 9 flexion. (AR at 256.) Plaintiff contends that the ALJ s failure to 10 address this report was error because Dr. Nottage s opinion contradicts 11 the ALJ s conclusion that Plaintiff was capable of returning to her past 12 relevant work as a billing manager. (Joint Stip. at 17.) it seems more probable than not that [Plaintiff] would be 13 An ALJ should generally accord greater probative weight to a 14 treating physician s opinion than to opinions from non-treating sources. 15 See 16 legitimate reasons for rejecting a treating physician s opinion in favor 17 of a non-treating physician s contradictory opinion. Orn v. Astrue, 495 18 F.3d 625 (9th Cir. 2007); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 19 1996). However, the ALJ need not accept the opinion of any medical 20 source, including a treating medical source, if that opinion is brief, 21 conclusory, and inadequately supported by clinical findings. Thomas v. 22 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Tonapetyan v. 23 Halter, 24 considered by the adjudicator in determining the weight to give a 25 medical opinion include: [l]ength of the treatment relationship and the 26 frequency of examination by the treating physician; and the nature and 27 extent of the treatment relationship between the patient and the 28 treating 20 C.F.R. 242 § F.3d 404.1527(d)(2). 1144, physician. 1149 Orn, The (9th 495 Cir. F.3d 10 ALJ must 2001). at give The 631-33; specific factors 20 to C.F.R. and be §§ 1 404.1527(d)(2)(i)-(ii), 416.927(d)(2)(i)-(ii). 2 Contrary to Plaintiff s contention, the ALJ did in fact consider 3 Dr. Nottage s September 10, 2005 opinion that Plaintiff could not return 4 to her past work as a billing manager, but disregarded it because it was 5 outside of [Dr. Nottage s] area of expertise and because it concerned 6 an issue which fell within the sole discretion of the Commissioner. (AR 7 at 39, fn. 2.) This was an appropriate reason under the Social Security 8 regulations for rejecting Dr. Nottage s opinion that Plaintiff could not 9 return to her former work as a billing manager. The ultimate 10 determination of disability (i.e. whether a claimant can perform work in 11 the 12 physician s statement that a claimant is unable to work is not 13 entitled to special weight. 20 C.F.R. 416.927(e); see McLeod v. Astrue, 14 640 F.3d 881, 884-85 (9th Cir. 2011) (ALJ not bound by opinion of 15 treating physician with respect to whether claimant can work or to the 16 ultimate issue of disability); see also Tonapetyan, 242 F.3d at 1148-49. 17 Furthermore, the ALJ reviewed and summarized Dr. Nottage s other 18 records and accorded them significant weight. (AR at 39.) The ALJ also 19 incorporated additional restrictions into her RFC assessment based upon 20 Dr. Nottage s findings regarding Plaintiff s need to avoid prolonged 21 neck flexion and extension. (Id.) Thus, it is clear that the ALJ 22 properly considered Dr. Nottage s opinions and incorporated them into 23 the RFC assessment but merely declined to defer to Dr. Nottage s opinion 24 that Plaintiff could not return to her past relevant work because that 25 was an issue reserved solely to the Commissioner. 26 national 2. economy) rests solely with the Commissioner, and a Dr. Michael Luciano 27 Plaintiff argues that the ALJ erred in failing to consider the 28 opinion of Dr. Luciano. (Joint Stip. at 22.) On March 21, 2006, Dr. 11 1 Luciano, an orthopedic surgeon, provided a report in the context of 2 Plaintiff s state workers compensation case. (AR at 468-501.) Dr. 3 Luciano concluded that vocational rehabilitation was indicated for 4 Plaintiff based upon her job description and her symptoms and subjective 5 complaints. (AR at 489.) Plaintiff contends that Dr. Luciano s finding 6 that Plaintiff could not perform her past job based upon her impairments 7 contradicts the ALJ s conclusion that Plaintiff could perform her past 8 relevant work. 9 However, as discussed above, the ALJ was not required to credit Dr. 10 Luciano s conclusion that Plaintiff could not return to her past work. 11 Moreover, 12 Plaintiff s medical history; however, the ALJ was not required to 13 discuss the report at great length. See Howard, 341 F.3d at 1012. 14 Finally, Dr. Luciano s prophylactic work restrictions for Plaintiff 15 included avoiding prolonged neck flexion, very heavy lifting, repetitive 16 at 17 pushing, power grasping with the left wrist and forceful activities with 18 the right wrist. (AR at 489.) These restrictions are consistent with the 19 ALJ s RFC assessment which limited Plaintiff s neck, shoulder and left 20 arm motion. (AR at 37.) Accordingly, the ALJ properly considered Dr. 21 Luciano s report and Plaintiff is not entitled to relief with respect to 22 this claim of error. or ALJ cited Dr. above-shoulder-level 23 24 the 3. Finally, Luciano s work with report the left while summarizing shoulder, forceful Dr. Carmela Yacoob Plaintiff contends that the ALJ failed to properly 25 consider Dr. Yacoob s March 6, 2007 report in which she opined that 26 Plaintiff 27 restrictions on Plaintiff s ability to sit, stand, walk, lift, carry, 28 use her hands and reach. (Joint Stip. at 25, citing AR at 650.) was unable to work and 12 in which she provided various 1 The ALJ provided legitimate reasons for refusing to give Dr. 2 Yacoob s March 6, 2007 opinion controlling weight, each of which are 3 supported by substantial evidence in the record. First, the ALJ rejected 4 the report because it was inconsistent with Dr. Yacoob s own records. 5 The March 6, 2007 report restricted Plaintiff to only occasional power 6 grasping, pushing and pulling, and fine manipulating with both her right 7 and left hand. (AR at 650.) However, as noted by the ALJ, in opinions 8 rendered in July 2006 and February 2008, Dr. Yacoob only precluded 9 Plaintiff from prolonged use of the left shoulder and left hand. (AR at 10 38, citing AR at 324, 649.) The Commissioner may take into account 11 whether a medical opinion is internally inconsistent in determining the 12 weight to accord the evidence. See 20 C.F.R. § 404.1527(c)(2); see also 13 Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995) (holding that ALJ 14 properly rejected physician s determination where it was conclusory and 15 unsubstantiated by relevant medical documentation ). 16 Plaintiff argues that Dr. Yacoob s March 6, 2007 report is not 17 necessarily inconsistent with Dr. Yacoob s July 2006 and February 2008 18 treatment records because the March 6, 2007 report focuses specifically 19 on Plaintiff s manipulative limitations. (Joint Stip. at 25.) However, 20 a review of the records finds that the ALJ s interpretation of the March 21 6, 2007 report as inconsistent is a reasonable interpretation of the 22 evidence. See Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999); 23 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1989) (noting that it 24 is the responsibility of the ALJ to resolve conflicts and ambiguities in 25 the medical record and determine the credibility of medical sources). 26 The ALJ also correctly refused to credit Dr. Yacoob s conclusion 27 that Plaintiff was unable to work because it was outside the scope of 28 Dr. Yacoob s expertise and was a decision reserved to the Commissioner. 13 1 (AR at 38.) See McLeod, 640 F.3d at 884-85. 2 Plaintiff next contends that the ALJ erred in failing to credit Dr. 3 Yacoob s limitation of Plaintiff to lifting and carrying no more than 4 five pounds. (Joint Stip. at 25.) Here, the ALJ properly relied upon the 5 contrary opinions of the orthopedic consultative examiner, Dr. Bruce, 6 Plaintiff s treating physician, Dr. Nottage, and the medical expert, Dr. 7 Jensen, 8 Contrary to Dr. Yacoob s limitation to lifting five pounds, Dr. Bruce 9 determined that Plaintiff could lift and carry 20 pounds occasionally 10 and 10 pounds frequently. (AR at 713.) If a treating professional s 11 opinion is contradicted by an examining professional s opinion, which is 12 supported by different independent clinical findings, the Commissioner 13 may resolve the conflict by relying on the latter. See Andrews, 53 F.3d 14 at 1041; see also Orn, 495 F.3d at 632 (ALJ may reject opinion of 15 treating physician in favor of examining physician whose opinion rests 16 on independent clinical findings). Because Dr. Bruce s opinion was based 17 upon his independent examination of Plaintiff, the ALJ properly relied 18 upon Dr. Bruce s lifting restrictions. in determining Plaintiff s RFC for lifting and carrying. 19 In addition, the ALJ appropriately relied upon the opinion of Dr. 20 Nottage, Plaintiff s treating physician, who concluded that Plaintiff 21 would only be precluded from very heavy lifting. (AR at 39, citing AR 22 at 275.) The ALJ s RFC assessment with respect to Plaintiff s ability to 23 lift and carry was also supported by the medical expert s opinion. After 24 reviewing all of Plaintiff s medical records, Dr. Jensen testified that 25 Plaintiff could lift and carry 20 pounds occasionally and 10 pounds 26 frequently with the right arm and 10 pounds occasionally and less than 27 10 pounds frequently with the left arm. (AR at 65-66.) The ALJ adopted 28 Dr. Jensen s lifting and carrying restrictions in her assessment of 14 1 Plaintiff s RFC. (AR at 37.) The ALJ was entitled to rely on the 2 reviewing physician s findings, particularly when they were consistent 3 with the other medical evidence in the record. The findings of a 4 nontreating, nonexamining physician can amount to substantial evidence, 5 so long as other evidence in the record supports those findings. 6 Andrews, 53 F.3d at 1041; Magallanes, 881 F.2d at 752. 7 Accordingly, because the ALJ provided legitimate reasons supported 8 by the record for refusing to give Dr. Yacoob s March 6, 2007 opinion 9 controlling weight, Plaintiff is not entitled to relief with respect to 10 this issue. 11 12 13 14 IV. Conclusion For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. 15 16 17 DATED: January 9, 2013 18 19 20 ______________________________ Marc L. Goldman United States Magistrate Judge 21 22 23 24 25 26 27 28 15

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