(SS) Gamez v. Commissioner of Social Security, No. 1:2008cv01642 - Document 16 (E.D. Cal. 2010)
Court Description: DECISION and ORDER DENYING 1 Plaintiff's Social Security Complaint and DIRECTING the Entry of Judgment for Defendant Michael J. Astrue, Commissioner of Social Security and Against Plaintiff Hector N. Gamez, signed by Magistrate Judge Sandra M. Snyder on 2/25/2010. CASE CLOSED. (Jessen, A)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 HECTOR N. GAMEZ, 10 Plaintiff, 11 v. 12 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL 13 SECURITY, 14 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) 1:08-cv-01642-SMS DECISION AND ORDER DENYING PLAINTIFF S SOCIAL SECURITY COMPLAINT (DOC. 1) ORDER DIRECTING THE ENTRY OF JUDGMENT FOR DEFENDANT MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, AND AGAINST PLAINTIFF HECTOR N. GAMEZ 16 Plaintiff is proceeding in forma pauperis and with counsel 17 with an action seeking judicial review of a final decision of the 18 Commissioner of Social Security (Commissioner) denying 19 Plaintiff s application of March 30, 2004, made pursuant to Title 20 II of the Social Security Act, for disability insurance benefits 21 (DIB), in which he alleged that he had been disabled since June 22 9, 2003, due to low back injury. (A.R. 140-43.) The parties have 23 consented to the jurisdiction of the United States Magistrate 24 Judge pursuant to 28 U.S.C. § 636(c)(1), and pursuant to the 25 order of Judge Lawrence J. O Neill filed November 18, 2008, the 26 matter has been assigned to the Magistrate Judge to conduct all 27 further proceedings in this case, including entry of final 28 1 1 judgment. 2 The decision under review is that of Social Security 3 Administration (SSA) Administrative Law Judge (ALJ) Christopher 4 Larsen, dated July 25, 2008 (A.R. 14-21), rendered after a 5 hearing held on June 24, 2008, at which Plaintiff appeared by 6 video and testified with the assistance of a non-attorney 7 representative. (A.R. 14, 61-91).1 8 The Appeals Council denied Plaintiff s request for review of 9 ALJ Larsen s decision on September 11, 2008 (A.R. 6-8), and 10 thereafter Plaintiff filed his complaint in this Court on October 11 27, 2008. Briefing commenced on June 25, 2009, and was completed 12 with the filing of Defendant s responsive brief on July 21, 2009. 13 The matter has been submitted without oral argument to the 14 Magistrate Judge. 15 I. Jurisdiction 16 The Court has subject matter jurisdiction pursuant to 42 17 U.S.C. § 405(g), which provides that individuals may obtain 18 judicial review of a final decision of the Commissioner of Social 19 Security by initiating a civil action in the district court 20 within sixty days of the mailing of the notice of decision. 21 Plaintiff timely filed his complaint on October 27, 2008, less 22 than sixty days after the mailing of the notice of decision on or 23 about September 11, 2008. 24 25 26 27 28 1 A previous hearing on Plaintiff s application was conducted by another ALJ on April 26, 2006, and a decision finding Plaintiff not disabled issued on September 14, 2006. (A.R. 23-60, 96-102.) The Appeals Council granted Plaintiff s request for review, vacated the decision of September 2006, and remanded the matter for further administrative proceedings, including a new hearing, an opportunity to submit additional evidence, completion of the administrative record, and a new decision because the administrative record could not be located or reconstructed. (A.R. 103-05.) 2 1 II. Standard and Scope of Review 2 Congress has provided a limited scope of judicial review of 3 the Commissioner's decision to deny benefits under the Act. In 4 reviewing findings of fact with respect to such determinations, 5 the Court must determine whether the decision of the Commissioner 6 is supported by substantial evidence. 42 U.S.C. § 405(g). 7 Substantial evidence means "more than a mere scintilla," 8 Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a 9 preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable 11 mind might accept as adequate to support a conclusion." 12 Richardson, 402 U.S. at 401. The Court must consider the record 13 as a whole, weighing both the evidence that supports and the 14 evidence that detracts from the Commissioner's conclusion; it may 15 not simply isolate a portion of evidence that supports the 16 decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 17 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 18 It is immaterial that the evidence would support a finding 19 contrary to that reached by the Commissioner; the determination 20 of the Commissioner as to a factual matter will stand if 21 supported by substantial evidence because it is the 22 Commissioner s job, and not the Court s, to resolve conflicts in 23 the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 (9th 24 Cir. 1975). 25 In weighing the evidence and making findings, the 26 Commissioner must apply the proper legal standards. Burkhart v. 27 Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must 28 review the whole record and uphold the Commissioner's 3 1 determination that the claimant is not disabled if the 2 Commissioner applied the proper legal standards, and if the 3 Commissioner's findings are supported by substantial evidence. 4 See, Sanchez v. Secretary of Health and Human Services, 812 F.2d 5 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If 6 the Court concludes that the ALJ did not use the proper legal 7 standard, the matter will be remanded to permit application of 8 the appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th 9 Cir. 1987). 10 11 12 III. Disability A. Legal Standards In order to qualify for benefits, a claimant must establish 13 that she is unable to engage in substantial gainful activity due 14 to a medically determinable physical or mental impairment which 15 has lasted or can be expected to last for a continuous period of 16 not less than twelve months. 42 U.S.C. §§ 416(i), 1382c(a)(3)(A). 17 A claimant must demonstrate a physical or mental impairment of 18 such severity that the claimant is not only unable to do the 19 claimant s previous work, but cannot, considering age, education, 20 and work experience, engage in any other kind of substantial 21 gainful work which exists in the national economy. 42 U.S.C. 22 1382c(a)(3)(B); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th 23 Cir. 1989). The burden of establishing a disability is initially 24 on the claimant, who must prove that the claimant is unable to 25 return to his or her former type of work; the burden then shifts 26 to the Commissioner to identify other jobs that the claimant is 27 capable of performing considering the claimant's residual 28 functional capacity, as well as her age, education and last 4 1 fifteen years of work experience. Terry v. Sullivan, 903 F.2d 2 1273, 1275 (9th Cir. 1990). 3 The regulations provide that the ALJ must make specific 4 sequential determinations in the process of evaluating a 5 disability: 1) whether the applicant engaged in substantial 6 gainful activity since the alleged date of the onset of the 7 impairment, 20 C.F.R. § 404.1520;2 2) whether solely on the basis 8 of the medical evidence the claimed impairment is severe, that 9 is, of a magnitude sufficient to limit significantly the 10 individual s physical or mental ability to do basic work 11 activities, 20 C.F.R. § 404.1520(c); 3) whether solely on the 12 basis of medical evidence the impairment equals or exceeds in 13 severity certain impairments described in Appendix I of the 14 regulations, 20 C.F.R. § 404.1520(d); 4) whether the applicant 15 has sufficient residual functional capacity, defined as what an 16 individual can still do despite limitations, to perform the 17 applicant s past work, 20 C.F.R. §§ 404.1520(e), 404.1545(a); and 18 5) whether on the basis of the applicant s age, education, work 19 experience, and residual functional capacity, the applicant can 20 perform any other gainful and substantial work within the 21 economy, 20 C.F.R. § 404.1520(f). 22 23 B. The ALJ s Findings The ALJ found that Plaintiff had severe impairments of 24 lumbar spine osteoarthritis, lumbar spine degenerative disk 25 disease, hypertension, and obesity, but Plaintiff had no 26 impairment or combination of impairments that met or medically 27 28 2 All references are to the 2008 version of the Code of Federal Regulations unless otherwise noted. 5 1 equaled a listed impairment. (A.R. 16-17.) Plaintiff retained the 2 residual functional capacity (RFC) to lift and carry twenty 3 pounds occasionally and ten pounds frequently; stand and walk or 4 sit a total of about six hours of an eight-hour workday; and 5 occasionally balance, stoop, kneel, crouch, crawl, and climb 6 ramps and stairs, but never climb ladders, ropes, or scaffolds. 7 (A.R. 17.) Plaintiff could not perform his past relevant work, 8 but because he was a younger individual (forty-five years old on 9 the date of alleged disability onset, and fifty as of October 10 2007) with at least a high school education, the ability to 11 communicate in English, and the aforementioned RFC, there were 12 jobs that existed in significant numbers in the national economy 13 because Plaintiff s non-exertional limitations did not 14 significantly reduce the range of light jobs that Plaintiff could 15 otherwise perform. (A.R. 19-20.) Accordingly, Plaintiff was not 16 disabled at any time from June 9, 2003, through the date of 17 decision. (A.R. 20-21.) 18 19 C. Plaintiff s Contentions Plaintiff argues that the ALJ failed to credit, or to state 20 legally sufficient reasons for rejecting, the opinion of the 21 examining, psychological expert, Dr. Lessenger, who diagnosed 22 borderline intellectual functioning, and the ALJ thereby 23 erroneously found at step two of the sequential analysis that 24 Plaintiff s mental impairment or impairments were not severe, and 25 at step five that Plaintiff could perform the work activity 26 identified by the ALJ. Plaintiff further contends that at step 27 three, in connection with determining Plaintiff s physical RFC, 28 the ALJ failed to state clear and convincing reasons for 6 1 rejecting the more recent opinion of Dr. Wolney, a treating 2 physician, and for adopting the outdated opinion of a non3 examining physician; further, the ALJ s finding concerning 4 Plaintiff s RFC was not supported by substantial evidence. 5 Accordingly, Plaintiff seeks remand for an award of benefits or, 6 in the alternative, remand for correction of legal errors. 7 IV. Medical Evidence 8 On June 9, 2003, Plaintiff suffered an injury while lifting 9 or pushing a very heavy object while working as a maintenance 10 electrician. (A.R. 352.) Findings of Dr. Kian Moini, treating 11 physician, on June 12, 2003, were mild; the diagnosis was 12 lumbosacral spine strain. (A.R. 348-49.) On June 16, 2003, 13 Plaintiff was cleared to return to modified work with no lifting, 14 pulling, or pushing over ten pounds, and no repetitive bending, 15 stooping, or twisting. (A.R. 344-46.) Plaintiff exhibited 16 tenderness in the lumbosacral area with muscle spasms, with some 17 pain and limitations during testing of range of motion. (A.R. 18 344-45.) Plaintiff experienced only slight improvement. On June 19 24, 2003, his treating physician examined Plaintiff and noted 20 generally mild findings; the diagnosis was lumbosacral spine 21 strain with subjective complaints far outweighing objective 22 findings; accordingly, a MRI scan was recommended. (A.R. 341-42.) 23 In June 2003, a MRI scan of the lumbar spine revealed that 24 Plaintiff had congenitally narrow AP diameter of the lumbar 25 spinal canal; a ventral and left-sided disc protrusion at L3-4 26 and facet hypertrophy resulting in moderate, left-sided foraminal 27 stenosis and mild to moderate central canal stenosis; mild canal 28 stenosis and bilateral foraminal stenosis at L4-5 and L2-3; and 7 1 mild canal stenosis at L1-2. (A.R. 354-55.) 2 In July 2003, consulting examiner Brian S. Grossman, M.D., 3 examined Plaintiff and evaluated him orthopedically at the 4 request of Dr. Cho after reviewing Plaintiff s medical history. 5 (A.R. 272-78.) Plaintiff complained of low back pain, popping in 6 various areas of his spine, tingling and numbness in the buttocks 7 area, low back pain when coughing or sneezing, and very limited 8 range of motion in the low back. Plaintiff stood without evidence 9 of list and with normal lumbar lordosis and thoracic kyphosis; 10 gait was normal without apparent limp or weakness, with ability 11 to toe-walk and heel-walk without difficulty. Plaintiff could 12 flex forward to reach the thighs with the fingertips with lack of 13 reversal of lumbar lordosis; lumbar extension was five per cent 14 of normal, and right and left lateral flexion were ten per cent 15 of normal, all with increased pain in the back. Plaintiff had 5/5 16 motor function of the hips and extremities bilaterally, intact 17 light touch throughout sensory exam, negative straight-leg 18 raising both seated and supine bilaterally, full hip range of 19 motion bilaterally, negative Faber and Patrick s test 20 bilaterally, and tenderness in the lumbosacral midline without 21 muscle spasm. Imaging studies of the lumbar spine showed all 22 vertebrae present with normal lumber lordosis, coronal alignment 23 within normal limits, and well-maintained vertebral body heights 24 and disc heights at all levels. There was no evidence of 25 spondylolisthesis or spondylolysis. The MRI of the lumber spine 26 taken June 26, 2003, reflected facet joint enlargement at L2-3, 27 L3-4, and L4-5, with minimal disc bulges and mild central and 28 bilateral foraminal stenosis at those levels; L1-2 and L5-S1 were 8 1 normal. Dr. Grossman wrote: 2 Functional capacity evaluation performed at Pair and Marotta on 7/2/2003 reveals an 18% whole body impairment with valid results. Reliability profile indicates a few non-organic signs present as well as very poor effort or voluntary submaximal effort which is not necessarily related to pain, impairment or disability. 3 4 5 (A.R. 275.) Dr. Grossman s diagnosis was lumbar strain and mild 6 facet enlargement with small disc bulges at L2-3, L3-4 and L4-5 7 with mild central and foraminal stenosis. (Id.) He concluded that 8 the lumbar MRI findings were mild and that the prognosis for 9 resolution of symptoms with additional conservative care 10 (physical therapy and oral anti-inflammatory medication) was 11 good. Plaintiff could work and lift no more than approximately 12 twenty-five pounds with no more than occasional bending and 13 stooping. (A.R. 275.)3 14 In August 2003, in connection with a worker s compensation 15 claim, Plaintiff s primary treating physician, Dr. Russell W. 16 Nelson, M.D., an orthopedic surgeon, performed an orthopedic 17 evaluation of Plaintiff, who was working four hours a day at the 18 time. Plaintiff complained of constant pain in his middle and low 19 back with occasional radiating weakness and numbness from the low 20 back down into both legs, and with pain increasing with bending 21 or being in one position for a long period of time. (A.R. 31222 17.) Plaintiff had local lumbar paraspinous tenderness and 23 muscle tightness, no extension, flexion to fifty degrees, and 24 lateral bending to ten degrees, with minimal rotations; 25 hamstrings were severely tight bilaterally; there was no 26 significant localizing sciatica, and foot dorsiflexion was trace 27 28 3 Plaintiff failed to appear for a follow-up appointment. (A.R. 271.) 9 1 positive right, with intact hip, knee, and ankle motion and 2 intact reflexes in the knees and ankles; and motor and sensory 3 exam were intact with Babinski s downgoing bilaterally. Plain 4 films revealed good disc height with no signs of significant 5 spurring and with short pedicles in the mid-lumbar region. Dr. 6 Nelson s diagnosis was lumbar disc bulge with stenosis, L3-4; 7 lesser, L4-5. He opined that the work injury combined with the 8 pre-existing short pedicles produced a significant stenotic 9 lesion at L3-4, lesser above and below. Plaintiff had difficulty 10 moving and becoming fully erect. Dr. Nelson opined that he was 11 temporarily totally disabled and should start epidural injections 12 and possibly a therapy program. (A.R. 316.) 13 In September and October 2003, Plaintiff received injections 14 of Depo-Medrol and Bupivacaine for complaints of painful 15 radiculitis, and he underwent myelogram contrast dye 16 epidurography. (A.R. 356-61, 424-85.) In November 2003, treating 17 orthopedist Dr. Nelson noted that the injections produced only 18 slight improvement. (A.R. 309.) Dr. Nelson reviewed MRI films 19 that showed slight disc desiccation and posterior disc protrusion 20 producing moderate canal stenosis at L3-4; the remaining discs 21 had excellent hydration with no significant bulges or 22 herniations. The diagnosis was lumbar disc bulge with stenosis, 23 L3-4; lesser, L4-5. Dr. Nelson recommended pool therapy and 24 medication. Plaintiff remained temporarily totally disabled. 25 (A.R. 310.) At the end of December 2003, findings upon 26 examination were essentially the same (A.R. 307), but Plaintiff 27 reported some improvement with physical therapy. Plaintiff 28 remained temporarily totally disabled, and the recommendation was 10 1 continued medication and therapy. (A.R. 307.) Plaintiff underwent 2 physical therapy from November 2003 through March 2004 that 3 permitted him to move with greater ease, but he continued to have 4 deficits in strength and functional mobility of the low back. 5 (A.R. 218-34, 219.) 6 In February 2004, Plaintiff continued with medication, and 7 Dr. Nelson considered him temporarily totally disabled. (A.R. 8 303-05.) Dr. Nelson submitted a supplemental report reviewing 9 medical records, in which he referred to Dr. Larry M. Cho s pre10 MRI note of June 24, 2003, that Plaintiff s subjective complaints 11 far outweighed his objective findings, and Dr. Brian S. 12 Grossman s recommendation in July 2003 that Plaintiff could 13 return to work with restrictions limiting him to lifting no more 14 than approximately twenty-five pounds and only occasional bending 15 and stooping, with physical therapy and anti-inflammatory 16 medication. (A.R. 300.) 17 On March 16, 2004, Dr. Nelson reported that Plaintiff was 18 permanent and stationary. (A.R. 295-98.) Plaintiff still had 19 localized back pain and was working on exercise strengthening; on 20 examination Dr. Nelson found tenderness in the lumbar and 21 paraspinous regions, flexion of sixty degrees, extension of 22 fifteen degrees with pain, lateral bending of twenty degrees, and 23 rotations of twenty-five degrees. Lower extremity reflexes and 24 motor and sensory exams were intact. Straight leg raise was 25 negative. The diagnosis remained lumbar disc bulges with 26 stenosis, greatest at L3-4, lesser at L4-5. Subjective factors of 27 disability included intermittent, slight low back pain that was 28 moderate with prolonged standing and walking, twisting, turning, 11 1 bending, or heavy lifting. Objective factors of disability were 2 disc injury with stenosis at L3-4 and disc injury with lesser 3 stenosis at L4-5. Dr. Nelson opined that based on the objective 4 and subjective factors, and further operating on a prophylactic 5 basis, heavy work and prolonged standing and walking were 6 precluded; occupational rehabilitation was warranted. Future 7 medical care included therapy and medication for severe flare-ups 8 of his condition; surgical decompression in the future was a 9 possibility. (A.R. 297.) 10 In June 2004, consulting examining physician Juliane Tran, 11 M.D., who was certified in physical medicine and rehabilitation, 12 reviewed Dr. Nelson s records and performed a consulting, 13 comprehensive, orthopedic evaluation. (A.R. 235-38.) Dr. Tran 14 noted normal gait, walking, Romberg test, and tandem gait; lumbar 15 flexion limited by back pain, and pain with extension of twenty16 five degrees; tenderness to palpation over the right L5-S1 level 17 and right and left sciatic notches; negative straight leg raising 18 bilaterally; and normal proprioception, sensory exam, motor 19 strength, bulk, and tone bilaterally. The impression was back 20 pain, probably from lumbar disk disease or discogenic back pain, 21 with significantly decreased flexion, symmetrical reflexes and 22 strength, and tenderness. He was limited to lifting no more than 23 twenty-five pounds occasionally and ten pounds frequently with no 24 sitting or standing more than six hours. (A.R. 237-38.) 25 On July 13, 2004, a non-examining state agency physician 26 opined that as a result of scoliosis and back pain, Plaintiff 27 could lift and carry twenty pounds occasionally, ten pounds 28 frequently, and sit and stand and/or walk for about six hours in 12 1 an eight-hour day, with only occasional climbing of ramps and 2 stairs, balancing, stooping, kneeling, crouching, and crawling, 3 and no climbing of ladders, ropes, or scaffolds. (A.R. 240-51.) 4 On September 1, 2004, Dr. Stuart R. Hutchinson, M.D., an 5 orthopedist and agreed medical examiner in Plaintiff s workers 6 compensation proceeding, reviewed Plaintiff s medical records for 7 forty-five minutes and examined Plaintiff, who complained of pain 8 in the lower back region stretching up towards his right lower 9 rib margin, occasional numbness of the right foot, and increased 10 pain with walking and sitting or driving for long periods. (A.R. 11 253-59.) Dr. Hutchinson found Plaintiff to be in relatively good 12 shape, with normal gait pattern, ability to walk on heels and 13 toes, equal leg lengths, no atrophy in the lower extremities, 14 straight leg raising with some back pain bilaterally from sitting 15 at about sixty degrees, good range of motion of the hips, lumbar 16 forward flexion of the fingertips to within eight inches of the 17 floor, extension of fifteen degrees, and normal sensory, motor, 18 and reflex examination of the lower extremities. Dr. Hutchinson 19 opined that Plaintiff s intermittent slight to moderate pain, 20 which was made worse with prolonged standing or sitting, his mild 21 decreased ranged of motion of the lumbar spine, and the findings 22 of stenosis at L2-3, L3-4, and L4-5 levels resulted in a 23 preclusion from heavy work. (A.R. 256.) Future medical treatment 24 should include periodic, short courses of aqua therapy; surgery 25 was a possibility if symptoms were to become unmanageable. (A.R. 26 257.) 27 Throughout 2004 and 2005, Plaintiff saw Dr. Nelson on an as- 28 needed basis, with complaints in October 2004 of increasing 13 1 symptoms into his lower right leg and tingling into the right 2 foot in addition to low back pain and discomfort (A.R. 292); 3 reports in December 2004 of abdominal pain possibly from 4 medications taken for his industrial injury (A.R. 289-90); 5 complaints in June 2005 of persistent back pain radiating into 6 the left side, with numbness, tingling, and burning (A.R. 286); 7 and a report of trouble finding work and persistent and 8 symptomatic back pain with significant help from aqua therapy in 9 September through November 2005 (A.R. 280-85). 10 On October 5, 2004, Anne M. Khong, M.D., a state agency 11 medical consultant, evaluated Plaintiff s lumbar stenosis and 12 opined that Plaintiff could lift fifty pounds occasionally, 13 twenty-five pounds frequently, and sit and stand and/or walk 14 about six hours in an eight-hour workday, with no climbing of 15 ladders, ropes, or scaffolds, only occasional climbing of ramps 16 and stairs, stooping, kneeling, crouching, and crawling, and 17 frequent balancing. (A.R. 260-70.) 18 Records from Clinica Sierra Vista of Plaintiff s treatment 19 by Dr. Wolney reflect treatment from April 2006 through March 20 2008 for neck and back pain and depression. (A.R. 402-417.) When 21 Plaintiff complained of neck pain, headaches, numbness in the 22 fingers, and coldness in the left leg in April 2006, he was 23 treated with Hydrocodone, Tylenol, Ibuprofen, Chlorzoxazone, and 24 Ranitidine, with no objective or clinical signs noted in April 25 2006. (A.R. 414.) Clinical signs of poor range of motion, pain, 26 and stiffness in the neck and back were noted in June 2006, with 27 an assessment of paravertebral muscle spasm of the C spine. 28 (A.R. 412-13.) On July 28, 2006, at a follow-up regarding MRI 14 1 results, Plaintiff s neck and back were within normal limits; 2 however, the doctor noted that because of pain from discogenic 3 disease at L3-4, Plaintiff was not able to work, and he suggested 4 a surgical consultation. (A.R. 411.) In August 2006, Plaintiff 5 had pain on motion of the C spine and was referred to an 6 orthopedist. (A.R. 410.) 7 On June 1, 2006, consulting, examining physician Leslie H. 8 Lessenger, Ph.D., performed a psychological evaluation of 9 Plaintiff after reviewing records. (A.R. 318-31.) Aside from the 10 mental status exam and psychological testing, all information was 11 gathered through interview with the client; no effort was made to 12 confirm information from outside sources. (A.R. 318-31.) 13 Plaintiff s chief complaint was constant neck and shoulder pain, 14 stiffness in the morning, and inability to sit in a soft chair 15 longer than thirty to forty-five minutes. He could perform light 16 housekeeping and drive. Plaintiff was oriented, had adequate 17 hygiene, moved awkwardly as if in pain, and adjusted himself 18 frequently, standing up at times. His mood was slightly 19 irritable, and he reported being generally short-tempered and 20 unhappy because of his physical condition. He was cooperative, 21 put forth good effort on all tasks, had logical and organized 22 speech, exhibited no signs of thought disorder, and denied 23 hallucinations. He had suicidal thoughts without intent; appetite 24 was variable, and he had gained thirty pounds in the past three 25 years. He saw shadows, had frequent nightmares, thoughts circled 26 about his head, and he was anxious because of his inability to 27 work as he used to due to slowness and an absence of patience 28 with tasks. Plaintiff scored a full scale IQ of 76 on the 15 1 Wechsler Adult Intelligence Scale-III (WAIS-III), with a verbal 2 IQ score of 79 and a performance IQ score of 77. He performed in 3 the borderline range on tasks requiring nonverbal, fluid 4 reasoning and visual-motor integration; his perceptual 5 organization score was 78; and he performed in the low average 6 range on tasks which reflected verbal acquired knowledge and 7 verbal reasoning, with a verbal comprehension score of 84. On the 8 Wechsler Memory Scale-III, Plaintiff scored in the borderline to 9 average range on all primary sub-tests with the exception of 10 auditory delayed, which was extremely low. Scores on the Wide 11 Range Achievement Test-3 were post-high school in reading, high 12 school in spelling, and seventh grade in math. Administration of 13 the Test of Memory Malingering was not indicative of malingering. 14 Dr. Lessenger s diagnostic impression was anxiety disorder (mixed 15 anxiety/depressive disorder) and pain disorder associated with 16 both psychological factors and a general medical condition, with 17 a global assessment of functioning of 60. (A.R. 321.) Dr. 18 Lessenger assessed no restrictions on daily activities, no 19 difficulties in social functioning, mild impairment of 20 concentration, average persistence, and no limitations in the 21 ability to understand, carry out, and remember simple 22 instructions, to respond appropriately to coworkers and 23 supervisors, or to respond to the public and to usual work 24 situations and changes in routine work settings. 25 On June 26, 2006, a radiological study of the cervical spine 26 revealed a congenitally narrow AP diameter of the lumber spinal 27 canal, fat within the filium terminale, ventral and left-sided 28 disc protrusion at L3-4 with facet hypertrophy resulting in 16 1 moderate, left-sided foraminal stenosis and mild to moderate 2 central canal stenosis, mild canal stenosis and bilateral 3 foraminal stenosis at L4-5 and L2-3, and mild canal stenosis at 4 L1-2. (A.R. 354-55.) A study of the cervical spine taken on June 5 23, 2006, reflected a mild paravertebral muscle spasm. (A.R. 6 391.) 7 On June 3, 2006, consulting examining physician Juliane 8 Tran, M.D., re-evaluated Plaintiff, who complained of neck and 9 back pain exacerbated with movement or prolonged sitting, 10 standing, walking, or bending over. (A.R. 332-39.) Plaintiff s 11 medications were Ibuprofen, Hydrocodone, Zantac, Flexeril, 12 Robaxin, Flurazepam, Tylenol ES, and Tylenol Arthritis. (A.R. 13 333.) The doctor observed moderate obesity, painful behaviors, a 14 lack of maximum effort during the exam, and depressed mood; 15 however, Plaintiff could tolerate sitting. A mental status 16 examination revealed that Plaintiff was alert and oriented, with 17 normal recall, intact judgment, and fair abstract thinking. 18 Physically, Plaintiff could do toe, heel, and tandem walking, and 19 his finger-to-nose, heel-to-shin, and rapid alternating movements 20 were intact. Flexion was limited and accompanied by pain, 21 although lateral flexion, lumbar lateral tilting, and 22 simultaneous extension were not painful. There was tenderness to 23 palpation over the cervical spine and the right and left L5-S1 24 lumbar levels. Testing for Trendelenburg, Faber s, Piriformis, 25 Neer s, Tinel s, and Phalen s was negative bilaterally; straight 26 leg raising was negative bilaterally without back pain or 27 radicular symptoms, and Babinski was negative. Motor strength was 28 5/5 bilaterally, and sensation was normal. 17 1 Dr. Tran s impression was back pain, most likely from lumbar 2 disk disease. There was no evidence of lumbar radiculopathy. 3 Plaintiff had symmetrical reflexes and normal strength and 4 sensory examinations in the lower extremities, decreased lumbar 5 range of motion and pain on palpation, and somewhat guarded 6 mobility. Dr. Tran opined that Plaintiff should be restricted in 7 activities involving standing and walking more than six hours per 8 day or lifting more than fifty pounds occasionally and over 9 twenty-five pounds frequently, with no postural limitations or 10 restrictions on sitting or working at heights. (A.R. 335.) 11 Treatment records of Dr. Wolney resumed in March 2007, with 12 Plaintiff appearing for medication refills (Atenolol and 13 Lisinopril). There was a notation that neck, extremities, hips, 14 and back were within normal limits, with neck pain and spasm. The 15 plan was medication. (A.R. 409.) Plaintiff appeared for 16 medication refills in April 2007, complaining of neck and back 17 pain. The doctor s note reflects that neck and back and all 18 extremities were within normal limits. Medications were adjusted. 19 (A.R. 408.) In June 2007, Plaintiff appeared for a follow-up as 20 to his depression; he had poor range of motion and pain in the 21 neck, although neck, back, extremities, and hips were all noted 22 to be within normal limits. The doctor refilled Plaintiff s 23 Zoloft prescription and Ibuprofen; Quinapril was D/C. (A.R. 24 407.) 25 In July 2007, an x-ray of the lumbar spine reflected 26 degenerative osteo-arthritic changes of the lumbar spine. (A.R. 27 400.) Various referrals resulted from Plaintiff s visit to the 28 Kern Medical Center Clinic on July 23, 2007, where Plaintiff 18 1 complained of back pain, blurred vision, dizziness, headaches, 2 sleep disturbance, and occasional feelings of heavy neck and arms 3 and hand cramps; he had been under increased stress recently and 4 had been crying at times. The doctor s impression was 5 hypertension, depression with anxiety but without suicidal or 6 homicidal ideations, and obesity. (A.R. 393-94.) 7 Plaintiff did not return to Dr. Wolney until September 2007, 8 when he sought medication refills for depression, neck spasm, and 9 back pain; examination revealed back spasm at the neck and low 10 back pain at the back, with neck, back, and extremities all 11 within normal limits. The doctor refilled Plaintiff s Zoloft and 12 prescribed Ibuprofen. (A.R. 405.) 13 In February 2008, Plaintiff sought treatment for the site of 14 a tooth extraction and a swollen elbow; no mention was made of 15 Plaintiff s back, neck, or depressive symptoms. In referring to 16 Plaintiff s history of depression and hypertension, the doctor 17 noted good control. Medications were Zoloft, Ibuprofen, 18 Norvasc, and Tylenol. (A.R. 403.) 19 On March 21, 2008, Robert Wolney, M.D., on the basis of 20 having seen Plaintiff two to three times per year since 2003, 21 rendered an opinion on a questionnaire relating to lumbar spine 22 and obesity residual functional capacity from 2003 to the 23 present. (A.R. 418-23, 402.) Plaintiff s degenerative disc 24 disease of the lumbar spine involved chronic back and neck pain 25 with associated difficulty in bending that was demonstrated by 26 tenderness, muscle spasm and weakness, sensory changes, reduced 27 grip strength (dropping things), and Mostly Upper Extremeties 28 Tremers. (A.R. 418.) At a height of six feet and weight of 279 19 1 pounds, Plaintiff had a BMI of 37 and met the criteria for 2 obesity II, which Dr. Wolney indicated did implicate slowed 3 physical reaction time and ambulation, limitations on the 4 distance of ambulation, reduction in capacity to handle physical 5 and emotional stress, pain in the upper and lower extremities, 6 and chronic fatigue. (A.R. 419.) Plaintiff could not ambulate 7 effectively due to stiffness and pain that was demonstrated by 8 positive straight leg raising bilaterally at thirty degrees, 9 abnormal gait, and sensory loss in the feet. Treatment was not 10 described, although drowsiness was listed apparently as a side11 effect of medication. (A.R. 420.) Plaintiff s impairment lasted 12 or could be expected to last at least twelve months. (A.R. 420.) 13 Dr. Wolney stated that Plaintiff s physical and emotional 14 impairments were reasonably consistent with the symptoms and 15 functional limitations described in the evaluation. (A.R. 421.) 16 However, a question mark was written over the Yes response line 17 that followed the query, Is your patient a malingerer? (A.R. 18 420.) Dr. Wolney indicated that emotional factors contributed to 19 the severity of Plaintiff s symptoms and functional limitations. 20 Psychological conditions affecting Plaintiff s physical condition 21 included depression, somatoform disorder, and anxiety. 22 Plaintiff s symptoms were such as to interfere constantly with 23 the maintenance of attention and concentration needed to perform 24 even simple work tasks; Plaintiff was frequently incapable of 25 even low-stress jobs based on Plaintiff s past history. 26 Plaintiff s significant depression and psychological overlay 27 affected Plaintiff s ability to work at a regular job on a 28 sustained basis. (A.R. 423.) 20 1 Dr. Wolney opined that Plaintiff could walk without rest or 2 severe pain for 100 feet, sit and stand no more than ten minutes 3 at one time, and sit, stand, and walk less than two hours total 4 in an eight-hour working day. (A.R. 421-23.) Plaintiff required 5 accommodations that included periods of walking around every ten 6 minutes for one hundred minutes; shifting of positions at will 7 from sitting, standing, or walking; taking unscheduled breaks 8 every fifteen minutes for ten minutes, with random movement every 9 ten to fifteen minutes; and using a cane or other unspecified 10 assistive device. Plaintiff could rarely lift less than ten 11 pounds, never look down with sustained flexion of the neck, 12 rarely turn the head right or left or look up, and frequently 13 hold his head in a static position. He could never climb ladders 14 and could only rarely twist, stoop (bend), crouch, squat, or 15 climb stairs. He had significant limitations with reaching, 16 handling, or fingering such that he was limited to only ten 17 percent of a workday with respect to using his hands to grasp, 18 turn, or twist objects, his fingers to perform fine manipulation, 19 and his arms to reach overhead. Dr. Wolney indicated somewhat 20 inconsistently that Plaintiff s impairments were not likely to 21 produce good days and bad days, but that Plaintiff was likely to 22 be absent from work as a result of his impairments more than four 23 days per month. (A.R. 423.) Dr. Wolney concluded that considering 24 Plaintiff s depression and psychological overlay in combination 25 with his degenerative disk disease and obesity, Plaintiff was 26 unable to work eight hours a day five days a week. (A.R. 423.) 27 Because Plaintiff raises no issue concerning the legal 28 standards or the sufficiency of the evidence relating to the 21 1 ALJ s findings concerning Plaintiff s subjective complaints, the 2 testimonial and other lay evidence related to those findings is 3 not summarized at length. 4 V. Severity of Plaintiff s Mental Impairment 5 The ALJ found that Plaintiff s anxiety and pain disorder 6 were not severe. He stated in pertinent part: 7 8 9 10 11 12 13 14 The psychological consultative examiner diagnosed Mr. Gamez with an anxiety disorder and a pain disorder. However, the consultative examiner determined Mr. Gamez had essentially no work-related limitations resulting from diagnosed impairments (citation omitted). Mr. Gamez s medically-determinable mental impairments of an anxiety disorder and a pain disorder do not cause more than minimal limitation in his ability to perform basic mental work activities, and are therefore non-severe. In making this finding, I have considered the four broad functional areas set out in the disability regulations for evaluating mental disorders and in section 12.00C of the Listing of Impairments (citation omitted). These four broad functional areas are known as the paragraph B criteria. 15 16 17 18 19 Mr. Gamez has no restriction of activities of daily living, no difficulties in maintaining social functioning and only mild difficulties in maintaining concentration, persistence, or pace. Mr. Gamez has not exhibited repeated episodes of decompensation, each of extended duration. Because Mr. Gamez s medically determinable mental impairment causes no more than mild limitation in any of the first three functional areas and no limitation in the fourth area, it is non-severe (20 CFR 404.1520a(d)(1)). 20 (A.R. 16-17.) 21 Plaintiff argues that because tests administered by the 22 examining consultant, Dr. Lessenger, reflected that Plaintiff s 23 IQ test scores (76 through 79) were in the borderline range of 24 intellectual functioning, Plaintiff necessarily suffered 25 significant non-exertional limitations and thus had a severe 26 mental impairment. Plaintiff relies on a case with 27 distinguishable facts, Tagger v. Astrue, 536 F.Supp.2d 1170, 17928 22 1 80 (C.D.Cal. 2008) (involving an applicant whose IQ scores were 2 between 65 and 70 and thus was in the mentally retarded range, 3 and who had documented illiteracy) and on cases from the Eighth 4 Circuit concerning the sufficiency of various combinations of 5 evidence to demonstrate that borderline intellectual functioning 6 constitutes a severe mental impairment. (Brief pp. 9-10.) 7 At step two, the Secretary considers if claimant has "an 8 impairment or combination of impairments which significantly 9 limits his physical or mental ability to do basic work 10 activities." 20 C.F.R. § 416.920(c). This is referred to as the 11 "severity" requirement and does not involve consideration of the 12 claimant's age, education, or work experience. The step-two 13 inquiry regarding severity is a de minimis screening device to 14 dispose of groundless claims. Bowen v. Yuckert, 482 U.S. 153-54 15 (1987). 16 In order to be disabled, one must suffer from an impairment 17 or combination thereof that is severe, which is defined as 18 meaning that it significantly limits one s physical or mental 19 ability to do basic work activities. 20 C.F.R. § 404.1520(c). 20 Basic work activities include the abilities and aptitudes 21 necessary to do most jobs, such as physical functions of walking, 22 standing, sitting, lifting, pushing, pulling, reaching, carrying, 23 or handling; capacities for seeing, hearing, and speaking; 24 understanding, carrying out, and remembering simple instructions; 25 use of judgment; responding appropriately to supervision, co26 workers and usual work situations; and dealing with changes in a 27 routine work setting. 20 C.F.R. § 404.1521(b). If the evidence 28 establishes only that one s impairment or combination thereof was 23 1 only a slight abnormality that had no more than a minimal effect 2 on an individual s ability to work, it is not severe. See Smolen 3 v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). An ALJ may find 4 that a claimant lacks a medically severe impairment or 5 combination thereof only when his conclusion is clearly 6 established by medical evidence. Webb v. Barnhart, 433 F.3d 683, 7 687 (9th Cir. 2005). 8 The evidence here did not support Plaintiff s assertion that 9 any borderline intellectual functioning imposed more than a 10 slight abnormality. Dr. Lessenger discerned no restrictions on 11 daily activities and no difficulties in maintaining social 12 functioning, in understanding, remembering, and carrying out 13 simple instructions, or in responding appropriately to coworkers, 14 supervisors, the public, usual work situations, and changes in 15 work routines. Dr. Lessenger assessed only a mild impairment of 16 concentration; persistence was average; and the GAF of 60 17 indicated moderate symptoms (e.g., flat affect and circumstantial 18 speech, occasional panic attacks) or moderate difficulty in 19 social, occupational, or school functioning (e.g., few friends, 20 conflicts with peers or co-workers). American Psychiatric 21 Association, Diagnostic and Statistical Manual of Mental 22 Disorders at 32 (4th ed., text revision) (DSM-IV-TR). 23 However, Defendant correctly points out that Plaintiff s 24 argument also fails at a more fundamental level. It is the 25 Plaintiff s burden to demonstrate that he suffers from a 26 medically determinable impairment, but symptoms alone are 27 insufficient to demonstrate an impairment, which must be 28 demonstrated by medically acceptable, clinical, diagnostic 24 1 techniques. Ukolov v. Barnhart, 420 F.3d 1002, 1006 (9th Cir. 2 2005). It has been held that a score from an objective test is 3 insufficient to establish an impairment unless accompanied by a 4 diagnosis or finding of the impairment. Id. (citing Soc. Sec. 5 Ruling 96-6p). 6 Here, Dr. Lessenger did not diagnose or find borderline 7 intellectual functioning. He diagnosed anxiety disorder and pain 8 disorder at Axis I, but under Axis II, he chose to indicate 9 V71.09, which signifies no diagnosis.4 (A.R. 321). Plaintiff has 10 the burden to produce sufficient evidence that he or she actually 11 suffers from an impairment, or else it need not be factored in to 12 a disability analysis. Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 13 1996). Although Plaintiff asserts generally that the ALJ failed 14 adequately to consider the opinions of the physicians in 15 connection with this argument, Plaintiff fails to identify what 16 evidence he contends would have demonstrated that borderline 17 intellectual functioning was an impairment or severe impairment 18 of Plaintiff. (Brief p. 14.) Plaintiff has failed to establish 19 that in concluding that Plaintiff did not have a severe 20 impairment of borderline intellectual functioning, the ALJ 21 applied incorrect legal standards or reached a conclusion that 22 was unsupported by substantial evidence in the record. 23 The Court thus has found it unnecessary to address 24 Plaintiff s contentions concerning the effect of a severe 25 26 27 4 A notation of V71.09 on Axis I or II means that no disorder on that axis is present. Diagnostic and Statistical Manual of Mental Disorders (4 th ed., text revision) at pp. 28-29 (DSM-IV-TR). 28 25 1 impairment of borderline intellectual functioning on the 2 vocational evidence. (Brief pp. 9-12.) 3 VI. Weighing of Dr. Wolney s Opinion 4 As to Plaintiff s RFC, the ALJ concluded that the opinion of 5 Dr. Wolney was unreliable and entitled to little evidentiary 6 weight. (A.R. 19.) The ALJ adopted the most restrictive opinion 7 in the record, and the most favorable to Mr. Gamez, namely, that 8 of the consulting, non-examining state agency physician of July 9 13, 2004, to the effect that Plaintiff could lift and carry 10 twenty pounds occasionally and ten pounds frequently, and sit and 11 stand and/or walk for about six hours in an eight-hour day, with 12 only occasional climbing of ramps and stairs, balancing, 13 stooping, kneeling, crouching, and crawling, and never climbing 14 ladders, ropes, or scaffolds. (A.R. 19, 240-51.) 15 Plaintiff argues that the ALJ s weighing of Dr. Wolney s 16 opinion was not supported by substantial evidence or a statement 17 of legally sufficient reasons. Plaintiff contends that because 18 Dr. Wolney s opinion was more recent and was rendered by a 19 treating physician, the ALJ erred in adopting the opinion of a 20 non-examining state agency physician; further, contrary to the 21 ALJ s express conclusion, the various opinions represented the 22 different conditions of Plaintiff over time and thus were not 23 inconsistent. 24 The standards for evaluating treating source s opinions 25 are as follows: 26 27 28 By rule, the Social Security Administration favors the opinion of a treating physician over non-treating physicians. See 20 C.F.R. § 404.1527. If a treating physician's opinion is well-supported by medically acceptable clinical 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record, [it will be given] controlling weight. Id. § 404.1527(d)(2). If a treating physician's opinion is not given controlling weight because it is not well-supported or because it is inconsistent with other substantial evidence in the record, the Administration considers specified factors in determining the weight it will be given. Those factors include the [l]ength of the treatment relationship and the frequency of examination by the treating physician; and the nature and extent of the treatment relationship between the patient and the treating physician. Id. § 404.1527(d)(2)(i)-(ii). Generally, the opinions of examining physicians are afforded more weight than those of non-examining physicians, and the opinions of examining non-treating physicians are afforded less weight than those of treating physicians. Id. § 404.1527(d)(1)-(2). Additional factors relevant to evaluating any medical opinion, not limited to the opinion of the treating physician, include the amount of relevant evidence that supports the opinion and the quality of the explanation provided; the consistency of the medical opinion with the record as a whole; the specialty of the physician providing the opinion; and [o]ther factors such as the degree of understanding a physician has of the Administration's disability programs and their evidentiary requirements and the degree of his or her familiarity with other information in the case record. Id. § 404.1527(d)(3)-(6). 18 Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). 19 The court in Orn also addressed the legal sufficiency of an 20 ALJ s reasoning: 21 22 23 24 25 26 27 28 The opinions of treating doctors should be given more weight than the opinions of doctors who do not treat the claimant. Lester [v. Chater, 81 F.3d 821, 830 (9th Cir.1995) (as amended).] Where the treating doctor's opinion is not contradicted by another doctor, it may be rejected only for clear and convincing reasons supported by substantial evidence in the record. Id. (internal quotation marks omitted). Even if the treating doctor's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing specific and legitimate reasons supported by substantial evidence in the record. Id. at 830, quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983). This can be done by setting out a detailed 27 1 2 3 4 5 6 and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings. Magallanes [v. Bowen, 881 F.2d 747, 751 (9th Cir.1989).] The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir.1988). Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.1998); accord Thomas, 278 F.3d at 957; Lester, 81 F.3d at 830-31. 7 Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). 8 Here, in the course of finding incredible Plaintiff s 9 subjective complaints of limitations that would preclude even 10 light work, and in evaluating the opinion evidence, the ALJ 11 detailed the multiple opinions in the record from experts who had 12 treated, examined, or evaluated Plaintiff and who had concluded 13 that he could essentially perform light work, such as consulting 14 examiner Dr. Grossman in July 2003, consulting examiner Dr. Tran 15 in 2004, and the state agency physician opining in July 2004. 16 (A.R. 18-19.) The ALJ also noted the multiple opinions of experts 17 who had found that Plaintiff could essentially perform medium 18 work, such as treating physician Dr. Nelson in March 2004, agreed 19 medical examiner Dr. Hutchinson in September 2004, the state 20 agency physician opining in October 2004, and consulting examiner 21 Dr. Tran in June 2006. (Id.) The ALJ appropriately reviewed and 22 assessed the overall medical evidence of record and noted the 23 general consistency of the opinions with respect to Plaintiff s 24 RFC. In so doing, he was articulating a legitimate reason for his 25 weighing of the opinions. The more consistent an opinion is with 26 the record as a whole, the more weight will be given to the 27 opinion. 20 C.F.R. § 404.1527(d)(4). 28 The ALJ then stated specific reasons for his weighing of Dr. 28 1 Wolney s opinion: 2 3 4 5 6 7 On March 21, 2008, Mr. Gamez s general-medicine treating physician, Robert Wolney, M.D., concluded Mr. Gamez was incapable even of sedentary work. Dr. Wolney determined Mr. Gamez could lift less than ten pounds rarely and limited him to sitting, standing, or walking less than two hours a day. (Even Dr. Wolney observed Mr. Gamez had a significant psychological overlay to his limited physical abilities.) Dr. Wolney also placed a question mark in the yes block when responding to a question about whether Mr. Gamez was a malingerer (citation omitted). These responses leave me doubtful of Dr. Wolney s opinion. 8 9 10 11 12 There is nothing in the record indicating any significant change in Mr. Gamez s condition that would support Dr. Wolney s opinion. What is more, Dr. Wolney s opinion is grossly inconsistent with the other objective medical opinions in the record, including opinions from medical specialists. Dr. Wolney is Dr. Gamez s general-medicine treating physician. For all the reasons above, I find the opinion of Dr. Wolney is unreliable and entitled to little evidentiary weight. 13 (A.R. 19.) 14 The ALJ thus stated multiple, specific reasons, amply 15 supported by substantial evidence in the record, for putting 16 little weight on Dr. Wolney s opinion. 17 The ALJ s reference to Dr. Wolney s acknowledgment of 18 Plaintiff s psychological overlay and the doctor s apparent 19 questioning of whether or not Plaintiff was a malingerer was 20 specific and legitimate. It is established that the fact that an 21 opinion is based primarily on the patient s subjective complaints 22 may be properly considered. Matney on Behalf of Matney v. 23 Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992). Where a treating 24 source s opinion is based largely on the Plaintiff s own 25 subjective description of his or her symptoms, and the ALJ has 26 discredited the Plaintiff s claim as to those subjective 27 symptoms, the ALJ may reject the treating source s opinion. Fair 28 29 1 v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989). 2 Here, the objective signs recorded in Dr. Wolney s notes are 3 few; Dr. Wolney necessarily relied to a significant extent on 4 Plaintiff s subjective claims concerning his symptoms and his 5 capacities. The ALJ s credibility findings are unchallenged in 6 this proceeding. Thus, the Court finds legitimate and supported 7 by substantial evidence in the record the ALJ s apparent 8 reasoning that Dr. Wolney s opinion was entitled to less weight 9 because it was dependent in significant part upon Plaintiff s 10 incredible subjective complaints. 11 As previously noted, the consistency or inconsistency of the 12 opinion with the record as a whole is a legitimate basis for 13 assessing the weight to be put on a treating source s opinion. 14 Dr. Wolney s opinion was clearly inconsistent with the overall 15 medical evidence of record, and this substantially supported the 16 ALJ s decision not to give it controlling weight. 17 The Court rejects Plaintiff s contention that the ALJ s 18 reasoning concerning this inconsistency was illegitimate or 19 otherwise legally insufficient because Plaintiff s condition was 20 a degenerative condition that necessarily changed over time. The 21 age of an opinion is one factor to be considered; a more recent 22 opinion may in some circumstances be entitled to greater weight. 23 Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1993.) Here, 24 however, the ALJ succinctly noted that the record did not reflect 25 any significant change in Plaintiff s condition that would 26 support Dr. Wolney s opinion. (A.R. 19.) As the preceding, 27 detailed recitation of the medical record demonstrates, there 28 were no objective indicia of significant deterioration in 30 1 Plaintiff s condition over the time period in issue. Further, as 2 Defendant argues, Dr. Wolney s opinion itself purported to cover 3 the period 2003 through March 2008. (A.R. 423.) Thus, the Court 4 concludes that the rationale concerning consistency was 5 legitimate in force in the circumstances of this case. To the 6 extent that medical evidence is inconsistent or conflicting, it 7 is the responsibility of the ALJ to resolve any conflicts. Morgan 8 v. Commissioner, 169 F.3d 595, 603 (9th Cir. 1999); Saelee v. 9 Chater, 94 F.3d 520, 522 (9th Cir. 1996); Matney on Behalf of 10 Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992). Here, the 11 ALJ appropriately resolved the conflicts. 12 Finally, the ALJ articulated a specific, legitimate reason, 13 supported by substantial evidence, with respect to reliance on 14 the opinions of the specialists in this case, who included 15 orthopedists, neurologists, and practitioners of physical 16 medicine and rehabilitation. More weight is generally given to 17 the opinion of a specialist about medical issues related to his 18 or her area of specialty than to the opinion of a source who is 19 not a specialist. See Holohan v. Massanari, 246 F.3d 1195, 1203 20 n. 2 (9th Cir. 2001); 20 C.F.R. § 404.1527(d)(5). Here, the 21 specialties of those whose opinions were given weight by the ALJ 22 were pertinent to the medical issues presented by Plaintiff s 23 condition. 24 Plaintiff argues that nothing other than the ALJ s own lay 25 opinion supports the ALJ s conclusions. However, the ALJ s 26 27 28 31 1 conclusion that Plaintiff could perform essentially light work5 2 with postural limitations was supported by the opinions of the 3 doctors other than Dr. Wolney, almost all of whom opined that 4 Plaintiff could perform exertionally more demanding work than 5 that the ALJ ultimately found Plaintiff capable of performing. 6 VII. Disposition 7 Based on the foregoing, the Court concludes that the ALJ s 8 decision was supported by substantial evidence in the record as a 9 whole and was based on the application of correct legal 10 standards. 11 Accordingly, the Court AFFIRMS the administrative decision 12 of the Defendant Commissioner of Social Security and DENIES 13 Plaintiff s Social Security complaint. 14 The Clerk of the Court IS DIRECTED to enter judgment for 15 Defendant Michael J. Astrue, Commissioner of Social Security, 16 and against Plaintiff Hector N. Gamez. 17 18 19 20 21 22 23 24 25 26 27 28 5 Light work is defined by 20 C.F.R. § 404.1567(b) as follows: Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time. 32 1 IT IS SO ORDERED. 2 3 Dated: February 25, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 33
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