Rosa Nuno v. Michael J Astrue, No. 5:2010cv00188 - Document 15 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION & ORDER by Magistrate Judge Victor B. Kenton, The decision of the Administrative Law Judge will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. (SEE ORDER FOR FURTHER DETAILS) (lmh)
Download PDF
<![CDATA[
Rosa Nuno v. Michael J Astrue Doc. 15 1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 ROSA NUNO, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 10-00188-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff’s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 (“JS”), and the Commissioner has filed the certified Administrative 26 Record (“AR”). Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge (“ALJ”) properly Dockets.Justia.com 1 considered the treating physician’s opinion regarding the 2 need for Plaintiff to avoid repetitive twisting; 3 2. Whether the ALJ properly considered the treating physician’s 4 opinion regarding Plaintiff’s need for a ten-minute break 5 every hour; 6 3. Whether the ALJ properly evaluated Plaintiff’s residual 7 functional capacity; and 8 4. Whether the ALJ posed a complete hypothetical question to 9 10 the vocational expert. (JS at 2-3.) 11 12 This Memorandum Opinion will constitute the Court’s findings of 13 fact and conclusions of law. After reviewing the matter, the Court 14 concludes that the decision of the Commissioner must be affirmed. 15 16 I 17 THE ALJ PROPERLY CONSIDERED THE OPINION OF DR. STEIGER 18 In her first issue, Plaintiff asserts that the ALJ failed to 19 properly consider the 20 opinion of her “treating physician,” Dr. Steiger. (JS at 3-12.) 21 Following an on-the-job injury which she suffered on April 2, 22 2004 (AR 162), Plaintiff was evaluated by Dr. Steiger on September 24, 23 2004 (AR 162-68), then referred out for an MRI, following which she 24 was examined by Dr. Steiger for a second time on November 1, 2004. (AR 25 155-61.) 26 purpose of Plaintiff’s examinations by Dr. Steiger was in connection 27 with 28 musculoligamentous sprain, lumbar spine, with left lower extremity her Plaintiff was not again seen by Dr. Steiger. workers’ compensation case. 2 Dr. Steiger The primary diagnosed 1 radiculitis; a disc bulge at L5-S1 of 5-6 mm, and at L4-5 of 3 mm; and 2 bilateral facet hypertrophy, at L4-5 and L5-S1. (AR 158.) 3 his examinations, and the MRI findings, Dr. Steiger recommended 4 restrictions from heavy lifting or repeated bending and stooping, and 5 advised that Plaintiff should avoid repetitive twisting and prolonged 6 sitting. (AR 159.) Based on 7 On August 28, 2007, at the request of the Department of Social 8 Services, Plaintiff received a complete orthopedic evaluation (“CE”) 9 from Dr. Sophon. (AR 180-84.) 10 opined 11 occasionally, 25 pounds frequently, and that she is able to sit, stand 12 and walk six hours out of an eight-hour day. (AR 184.) 13 that Plaintiff is Based on his evaluation, Dr. Sophon able to lift and carry 50 pounds At the hearing before the ALJ (AR 20-52), testimony was taken 14 from Dr. Lorber, the Medical Expert (“ME”). 15 of the available medical evidence, and rendered his own opinion that 16 Plaintiff is capable of lifting up to 20 pounds, frequently 10 pounds; 17 that she may occasionally bend, stoop and crouch, but should not kneel 18 or crawl; she cannot work at unprotected heights, or around dangerous 19 moving machinery, and should not be exposed to concentrated vibration. 20 She should not balance, climb ladders, scaffolds or ropes. 21 stand and/or walk for a period of at least four hours per day, but not 22 more than one hour at a time. 23 hours per day, but not more than one hour at a time. She does not 24 require manipulative 25 restrictions. (AR 27-28.) any other Dr. Lorber reviewed all She may She may sit for a total of at least six exertional, environmental or 26 In his decision, the ALJ reviewed the reports and opinions of 27 various physicians, including Drs. Steiger and Sophon, and the State 28 Agency physicians, in addition to Plaintiff’s treatment by a family 3 1 nurse practitioner. (AR 14-17.) The ALJ essentially adopted the 2 functional restrictions found by the ME in arriving at Plaintiff’s 3 residual functional capacity (“RFC”), at Step Four of the sequential 4 evaluation process. (AR 17.) 5 Plaintiff finds fault in the ALJ’s determination of her RFC 6 because she contends that the ALJ failed to address Dr. Steiger’s 7 opinion that Plaintiff was incapable of repetitive twisting. 8 reasons set forth below, the Court disagrees. For the 9 First, a careful examination of the ALJ’s RFC would indicate that 10 he did not, in fact, fail to address or in fact reasonably incorporate 11 Dr. Steiger’s functional limitations. 12 pursuant to Social Security Ruling (“SSR”) 96-8P, non-exertional 13 limitations include “postural” aspects, which include such activities 14 as twisting. 15 postural limitations such as bending, stooping and crouching (AR 12), 16 the ALJ effectively incorporated Dr. Steiger’s limitation against 17 “repetitive” twisting types of postural movements. The absence of the 18 word “twisting” in the discussion of postural limitations incorporated 19 in the ALJ’s RFC is of de minimis significance in view of its overall 20 import. As the Commissioner notes, Thus, in precluding Plaintiff from more than occasional 21 The Court also questions Plaintiff’s characterization of Dr. 22 Steiger as her treating physician, despite the fact that Dr. Steiger 23 may have so characterized himself in the heading of his two reports. 24 A treating physician, however, is defined in the Social Security 25 context as a doctor who has an “ongoing treatment relationship” with 26 his or her patient. (See 20 C.F.R. §404.1502.) 27 regulation, “Generally, we will consider that you have an ongoing 28 treatment relationship with an acceptable medical source when the 4 As stated in the 1 medical evidence establishes that you see ... the source with a 2 frequency consistent with accepted medical practice for the type of 3 treatment and/or evaluation required for your medical condition(s).” 4 The regulation also notes that a treating source is not one who 5 provides an evaluation in support of a claim for disability. 6 certainly be viewed that Dr. Steiger’s position as the evaluating 7 physician for Plaintiff’s workers’ compensation claim would fall into 8 that exception. 9 infrequency or the temporal limitation of Dr. Steiger’s relationship 10 with Plaintiff (e.g., two examinations in 2004) which is determinative 11 in and of itself, because even a physician who infrequently sees a 12 patient may, under certain circumstances, be considered a treating 13 source. 14 complaints of disability, it would be expected that she would have a 15 more extensive relationship with a treating source than is reflected 16 in simply two examinations by a physician for workers’ compensation 17 purposes at or around the time of her on-the-job injury. 18 record here reflects that after seeing Dr. Steiger in 2004, Plaintiff 19 did not undergo any medical treatment whatsoever until approximately 20 2006, when she began seeing a nurse practitioner. It can The Court would note, however, that it is not the Rather, it is the fact that considering Plaintiff’s extreme Indeed, the 21 Lending further support to the conclusions of the ALJ with regard 22 to Plaintiff’s functional limitations is the fact that the ALJ 23 determined Plaintiff’s RFC for a reduced range of light work and 24 occasional 25 restrictive than Dr. Steiger’s opinion which only precluded Plaintiff 26 from heavy lifting and repeated postural activities. 27 28 postural activities as even more conservative or Even if Dr. Steiger is viewed as a treating physician, his opinion is not necessarily conclusive 5 as to either Plaintiff’s 1 physical condition or the ultimate issue of her disability. Further, 2 the ALJ may reject the opinion of a treating or examining physician in 3 favor of the opinion of a non-treating, non-examining medical expert. 4 The rule is succinctly stated in Morgan v. Apfel, 169 F.3d 595, 602 5 (9th Cir. 1999): 6 “The opinion of a nonexamining medical advisor cannot 7 by itself constitute substantial evidence that justifies the 8 rejection 9 physician. (citations omitted) of the opinion of an examining or treating In Gallant [Gallant v. 10 Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984)], we determined 11 that ‘the report of [a] nontreating, nonexamining physician, 12 combined with the ALJ’s own observation of [the] claimant’s 13 demeanor at the hearing,’ did not constitute substantial 14 evidence and, therefore, did not support the Commissioner’s 15 rejection of the examining physician’s opinion that the 16 claimant was disabled. 17 Pitzer [Pitzer v. Sullivan, 908 F.2d 502 (9th Cir. 1990)], 18 we held that the nonexamining physician’s opinion ‘with 19 nothing more’ did not constitute substantial evidence. 20 Gallant, 753 F.2d at 1456. In But we have consistently upheld the Commissioner’s 21 rejection of the 22 physician, 23 nontreating, 24 omitted] 25 (9th 26 determination included, among other things, testimony from 27 the claimant that conflicted with her treating physician’s 28 opinion.” [citation omitted] based opinion in of part nonexamining a on treating the medical or examining testimony advisor. of the [citations In Magallanes [Magallanes v. Bowen, 881 F.2d 747 Cir. 1989)], evidence 6 that supported the ALJ’s 1 2 3 (169 F.3d at 602) Also instructive is the Ninth Circuit’s discussion of this issue in Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995): 4 “Where the opinion of the claimant’s treating physician 5 is contradicted, and the opinion of a nontreating source is 6 based on independent clinical findings that differ from 7 those 8 nontreating source may itself be substantial evidence; it is 9 then solely the province of the ALJ to resolve the conflict. of the treating physician, the opinion of the 10 Magallanes, 881 F.2d at 751. 11 nontreating 12 treating physician but is not based on independent clinical 13 findings, or rests on clinical findings also considered by 14 the 15 physician may be rejected only if the ALJ gives specific, 16 legitimate 17 substantial evidence in the record. Id. at 751, 755. 18 Ramirez v. Shalala, 8 F.3d 1449, 1453 (9th Cir. 1993) 19 (applying test where ALJ relied on contradictory opinion of 20 nonexamining medical advisor).” 21 source’s treating opinion physician, reasons Where, on the other hand, a for the doing contradicts opinion so of that that the are of the treating based on See (53 F.3d at 1041.) 22 23 24 25 Based on all of the foregoing, the Court determines that the ALJ did not err in his evaluation of Dr. Steiger’s opinion. Plaintiff asserts a related second issue concerning Dr. Steiger’s 26 opinion. She finds fault with the ALJ’s failure to include Dr. 27 Steiger’s limitation on Plaintiff’s exertional capacity. Dr. Steiger 28 opined that Plaintiff would require, in a work setting, a ten-minute 7 1 break every hour. (AR 162-68.) That specific limitation was not 2 included in the ALJ’s RFC. 3 error in this portion of the ALJ’s decision. Again, however, the Court does not find 4 The principal point is that error cannot be found because Dr. 5 Steiger did not incorporate a ten-minute break into any of his 6 opinions; rather, the discussion in Dr. Steiger’s first report of 7 September 24, 2004 of this issue is under the “History of Injury” 8 portion, in which Dr. Steiger indicates that Plaintiff had reported 9 that she was to take ten-minute breaks every hour. (AR 163.) Clearly 10 this does not constitute Dr. Steiger’s objective opinion, but, rather, 11 a reflection of the medical history that he took from Plaintiff during 12 his first examination of her. 13 for 14 examination, in November 2004. 15 Steiger did not at all discuss any requirement that Plaintiff would 16 need to take a break every hour. 17 the ME’s testimony at the hearing, found that every hour, Plaintiff 18 would need to take breaks from sitting, standing or walking. (AR 12, 19 28.) 20 21 22 an MRI, he then After Dr. Steiger referred Plaintiff rendered a second opinion following re- In this report (AR 155-61), Dr. Despite that, the ALJ, relying upon Based on the foregoing, the Court can find no error with regard to Plaintiff’s second issue concerning rest breaks. Plaintiff’s third issue follows from the first two issues, in 23 raising questions about the RFC as found by the ALJ. 24 Plaintiff 25 asserted omissions in the ALJ’s findings of Plaintiff’s exertional 26 capacities, but raises no new issue on a substantive level. 27 addition, however, Plaintiff glosses over the fact that after Dr. 28 Steiger’s first examination in September 2004, he found that Plaintiff merely incorporates her 8 first two issues, But here, concerning In 1 had the ability to do only light work, while in his second report, 2 following a re-examination two months later, he found that Plaintiff 3 had the ability to do anything less than heavy work with repetitive 4 postural movements. 5 constituting 6 limitations, then clearly, they would be inconsistent. A more logical 7 reading, 8 discussion, is that Dr. Steiger’s second report more accurately 9 reflects Dr. which his If, in fact, both reports are postulated as Steiger’s the Court objective opinion has as to already opinion as Plaintiff’s adopted to in functional its Plaintiff’s previous functional 10 limitations and abilities. 11 ALJ erred on Plaintiff’s side in finding more restrictive limitations 12 than even Dr. Steiger had found, by adopting the opinion of the ME. 13 Finally, Plaintiff’s Further, as the Commissioner notes, the fourth issue concerns the asserted 14 incompleteness of the hypothetical question posed to the Vocational 15 Expert 16 asserted errors set forth in the first two issues, in that the 17 hypothetical questions, which are laboriously quoted in the JS, fail 18 to include limitations on repetitive twisting or a requirement that 19 Plaintiff take ten-minute breaks every hour. 20 adjudicated these issues in its previous discussion, and nothing 21 further need be stated to adequately address this formulation of 22 asserted error. 23 repetitive twisting or a requirement for a ten-minute break every hour 24 are an accurate reflection of Plaintiff’s RFC, they need not have been 25 included in a hypothetical question to a VE. 26 hypothetical question need not incorporate limitations not found to be 27 applicable. 28 2005). (“VE”). Again, this issue essentially incorporates the The Court has already Because the Court has not found that restrictions on The law is that the See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. Consequently, the Court can find no error in the asserted 9 1 incompleteness of the hypothetical posed by the ALJ to the VE at the 2 hearing. 3 4 5 The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 6 7 8 DATED: November 3, 2010 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
