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Murphy v. Colvin

United States District Court, Ninth Circuit

August 22, 2013

CAROLYN MURPHY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION RE: SOCIAL SECURITY DISABILITY APPEAL

MARY ALICE THEILER, Magistrate Judge.

Plaintiff Carolyn Murphy proceeds through counsel in her appeal of a final decision of the Commissioner of the Social Security Administration (Commissioner). The Commissioner denied plaintiff's application for Supplemental Security Income (SSI) after a hearing before an Administrative Law Judge (ALJ). Having considered the ALJ's decision, the administrative record (AR), and all memoranda of record, the Court recommends this matter be AFFIRMED.

FACTS AND PROCEDURAL HISTORY

Plaintiff was born on XXXX, 1964.[1] She completed the tenth grade of high school and obtained her GED. Plaintiff previously worked as a receptionist, auto parts counter clerk, warehouse worker, cashier, daycare worker, fast food worker, box bender, and electrical inspector. (AR 80-81.)

Plaintiff filed an application for SSI in March 2010, alleging disability beginning November 15, 2008.[2] (AR 194-97.) Her application was denied initially and on reconsideration, and she timely requested a hearing.

ALJ Stephanie Martz held a hearing on October 25, 2011, taking testimony from plaintiff, a vocational expert (VE), and plaintiff's therapist, Diane Spangler. (AR 32-89.) On November 7, 2011, the ALJ rendered a decision finding plaintiff not disabled. (AR 11-24.)

Plaintiff timely appealed. The Appeals Council denied plaintiff's request for review on November 5, 2012 (AR 1-3), making the ALJ's decision the final decision of the Commissioner. Plaintiff appealed this final decision of the Commissioner to this Court.

JURISDICTION

The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).

DISCUSSION

The Commissioner follows a five-step sequential evaluation process for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must be determined whether the claimant is gainfully employed. The ALJ found that plaintiff had not engaged in substantial gainful activity since March 1, 2010, the application date. See Social Security Ruling (SSR) 83-20 (SSI payments are prorated for the first month for which eligibility is established after application and after a period of ineligibility).

At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found severe: degenerative disc disease with central stenosis and foraminal stenosis with radiculopathy; meniscal tear left knee; status post fracture left ring finger; obesity; hypothyroidism; alcohol, methamphetamine, cocaine, and opiate dependence in sustained full remission; and dysthmic disorder. Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found plaintiff's impairments did not meet or equal the criteria of a listed impairment.

If a claimant's impairments do not meet or equal a listing, the Commissioner must assess residual functional capacity (RFC) and determine at step four whether the claimant has demonstrated an inability to perform past relevant work. The ALJ found plaintiff had the RFC to perform sedentary work, except that she can lift and carry ten pounds occasionally and ten pounds frequently; sit about six hours; and stand or walk at least two hours in an eight-hour day with regular breaks. She further found plaintiff: can push/pull within the above-described exertional limits; occasionally climb ladders, ropes, or scaffolds, and frequently climb ramps and stairs; frequently balance, kneel, crouch, and crawl; occasionally finger with her left hand; should avoid concentrated exposure to vibration and hazards; is able to understand, remember, and carry out very short and simple instructions and make simple decisions; can have occasional and brief superficial contact with coworkers, supervisors, and the public; should have a routine and predictable workplace; and would need to change positions between sitting and standing at will. With that RFC, the ALJ found plaintiff unable to perform her past work.

If a claimant demonstrates an inability to perform past relevant work or has no past relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant retains the capacity to make an adjustment to work that exists in significant levels in the national economy. The ALJ concluded plaintiff could perform jobs existing in significant numbers in the national economy, such as work as a surveillance system monitor and addresser. The ALJ, therefore, concluded plaintiff was not disabled since the March 1, 2010 application date.

This Court's review of the final decision is limited to whether the decision is in accordance with the law and the findings supported by substantial evidence in the record as a whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means more than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If there is more than one rational interpretation, one of which supports the final decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

Plaintiff argues the ALJ erred in rejecting consistent medical opinion evidence, in assessing her credibility, lay witness testimony, and the RFC, and in reaching the conclusion at step five. She requests remand for an award of benefits or, in the alternative, for further administrative proceedings. The Commissioner argues that the ALJ's decision is supported by substantial evidence and should be affirmed.

Medical Opinion Evidence

Social Security regulations distinguish between "acceptable medical sources" and "other sources." Acceptable medical sources include, for example, licensed physicians and psychologists, while other non-specified medical providers are considered "other sources." 20 C.F.R. §§ 404.1513(a) and (d), 416.913(a) and (d), and SSR 06-03p.

In general, more weight should be given to the opinion of a treating physician than to a non-treating physician, and more weight to the opinion of an examining physician than to a non-examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Where not contradicted by another physician, a treating or examining physician's opinion may be rejected only for "clear and convincing'" reasons. Id. (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). Where contradicted, a treating or examining physician's opinion may not be rejected without "specific and legitimate reasons' supported by substantial evidence in the record for so doing." Id. at 830-31 (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).

Less weight may be assigned to the opinions of "other sources." Gomez v. Chater, 74 F.3d 967, 970 (9th Cir. 1996). However, the ALJ's decision should reflect consideration of such opinions, SSR 06-3p, and the ALJ may discount the evidence by providing reasons germane to each source. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (cited sources omitted).

Plaintiff argues the ALJ erred in the assessment of the medical opinions of treating physician Dr. Harold Moore, mental health counselor Diane Spengler, examining physicians Drs. Mark Koenen and James Czysz, and reviewing physician Dr. Diane Fligstein. Given the existence of contradictory opinion evidence, the ALJ was required to provide specific and legitimate reasons for rejecting medical opinions.

A. Dr. Harold Moore

Dr. Moore has served as plaintiff's treating physician for many years. As described by the ALJ, in August 2011, Dr. Moore opined that plaintiff would have "slight to moderate impairments in her cognitive and social work factors, indicating [she] would have some moderate limitations but was still able to function[, ]" and, due to her degenerative disc disease and meniscal tear, could lift up to ten pounds occasionally, stand and sit for one hour, walk for one hour total in an eight-hour day, and "could sit for short periods but would need to stand and walk frequently, but not far[.]'" (AR 19-20 (discussing AR 871-79).) This was "generally consistent" with an October 2011 assessment by Dr. Moore. (AR 20 (discussing AR 900-02).) Previously, in December 2009, Dr. Moore opined plaintiff's chronic low back pain and left finger fracture would cause "[very] significant interference" with plaintiff's ability to stand, walk, lift, carry, and handle, but assessed no restrictions on sitting, and opined both that plaintiff could perform sedentary work and was permanently disabled. ( Id. (discussing AR 822-25).)

The ALJ gave Dr. Moore's opinions little weight:

His opinions regarding the claimant's mental abilities and her ability to do sedentary work are given significant weight. However, his opinion regarding the claimant's limitations for sitting to one hour in an eight-hour day, postural limitations, and limitations on reaching with her right hand, are given little weight. Dr. Moore's treatment notes reflect little objective findings that are consistent with these opinions. Although Dr. Moore noted the claimant reported some "tingling" in her right hand in March 2011, he did not indicate any treatment was necessary and later examinations do not mention this issue. He rarely even notes any complaints of back pain or other objective findings of problems relating to the claimant's allegedly disabling back impairment. For example, in June 2011, Dr. Moore noted the claimant's chronic back pain, but also noted it was "controlled to some extent" with her use of methadone. Dr. Moore's opinion that the claimant could not sit for more than an hour per day in 2011 also conflicts with his opinion from 2009 in which he did not indicate the claimant would have any limitations on sitting. Dr. Moore's opinion on sitting is also inconsistent with the claimant[']s reported activities, which include reading, watching movies, ...

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