Espinoza v. Astrue, EDCV 10-01460-MAN

Decision Date17 October 2011
Docket NumberNO. EDCV 10-01460-MAN,EDCV 10-01460-MAN
CourtU.S. District Court — Central District of California
PartiesJOSE A ESPINOZA, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

Plaintiff filed a Complaint on September 24, 2010, seeking review of the denial by the Social Security Commissioner (the "Commissioner") of plaintiff's application for a period of disability ("POD"), disability insurance benefits ("DIB"), and supplemental security income ("SSI"). On October 21, 2010, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. The parties filed a Joint Stipulation on July 6, 2011, in which: plaintiff seeks an order reversing the Commissioner's decision and remanding this case for the payment of benefits or, alternatively, for further administrative proceedings; and defendant requests that the Commissioner's decision be affirmed or, alternatively, remanded for further administrative proceedings. The Court has takenthe parties' Joint Stipulation under submission without oral argument.


On September 14, 2006, plaintiff filed an application for POD, DIB, and SSI. (Administrative Record ("A.R.") 48.) Plaintiff, who was born on July 6, 1965 (A.R. 54),1 claims to have been disabled since August 15, 2006 (A.R. 48, 50), due to diabetes, high blood pressure, neuropathy, and skin infection (see, e.g., A.R. 299, 310). Plaintiff has past relevant work experience as a barber and building maintenance/laborer. (A.R. 54, 300.)

After the Commissioner denied plaintiff's claim initially and upon reconsideration (A.R. 190-94, 200-05), plaintiff requested a hearing (A.R. 206). On December 3, 2008, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge Michael D. Radensky (the "ALJ"). (A.R. 155-85.) At the hearing, medical expert Samuel Landau, M.D., and vocational expert Corrine J. Porter also testified. On March 23, 2009, the ALJ denied plaintiff's claims (A.R. 48-55), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 1-3). That decision is now at issue in this action.


The ALJ found that plaintiff has not engaged in substantial gainful activity since August 15, 2006, the alleged onset date of his disability. (A.R. 48, 50.) The ALJ determined that plaintiff has the following severe impairments: "diabetes mellitus with peripheral neuropathy and recurrent abscesses." (A.R. 50.) The ALJ also determined that plaintiff does not have an impairment or a combination of impairments that meets or equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1525, 404.1526, 416.925, 416.926). (A.R. 51.)

After reviewing the record, the ALJ determined that plaintiff has the residual functional capacity ("RFC") to perform sedentary work. (A.R. 51.) Specifically, the ALJ determined that plaintiff can:

use a cane as needed, lift and carry 20 pounds occasionally, 10 pounds frequently, stand/walk two hours in an eight hour workday, sit for six hours in an eight hour workday, no operating foot pedals or controls, no climbing ladders, no work at heights or balancing, and work environment should be air conditioned.


The ALJ concluded that plaintiff is unable to perform his past relevant work. (A.R. 54.) However, having considered plaintiff's age, education, work experience, RFC, and the testimony of the vocationalexpert, the ALJ found that jobs exist in the national economy that plaintiff could perform, including cashier II, small items assembly, charge account clerk, and inspectors production. (A.R. 54-55.) Accordingly, the ALJ concluded that plaintiff has not been under a disability, as defined in the Social Security Act, from August 15, 2006, through the date of his decision. (A.R. 55.)


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citation omitted). The "evidence must be more than a mere scintilla but not necessarily a preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). "While inferences from the record can constitute substantial evidence, only those 'reasonably drawn from the record' will suffice." Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted).

Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). "The ALJ is responsible for determining credibility, resolving conflicts in medicaltestimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate nondisability determination.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. Comm'r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d at 679.


Plaintiff claims that the ALJ: (1) improperly considered and rejected the opinion of his treating physician; (2) failed to find that plaintiff suffers from a legally severe impairment attributable to his hands; and (3) improperly evaluated plaintiff's credibility. (Joint Stipulation ("Joint Stip.") at 6-32.)

I. The ALJ Failed To Give A Specific And Legitimate Reason Supported By Substantial Evidence For Rejecting The Opinion Of Plaintiff's Treating Doctor.

It is the responsibility of the ALJ to analyze evidence and resolve conflicts in medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). In the hierarchy of physician opinions considered in assessing a social security claim, "[g]enerally, a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a reviewing physician's." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. §§ 404.1527(d), 416.927(d).

The opinions of treating physicians are entitled to the greatest weight, because the treating physician is hired to cure and has a better opportunity to observe the claimant. Magallanes, 881 F.2d at 751. When a treating physician's opinion is not contradicted by another physician, it may be rejected only for "clear and convincing" reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)(as amended). When contradicted by another doctor, a treating physician's opinion may only be rejected if the ALJ provides "specific and legitimate" reasons supported by substantial evidence in the record. Id. It is well established that "[w]hen a treating physician's opinion is contradicted . . . , the ALJ must assess its persuasiveness in light of specified factors, including the 'length of the treatment relationship and the frequency of examination;' the 'nature and extent of the treatment relationship;' and the treating opinion's consistency 'with the record as a whole.'" Aranda v. Comm'r SSA, 405 Fed. Appx. 139, 141 (9th Cir. 2010)(quotingOrn, 495 F.3d at 631).

"The opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of . . . a treating physician." Lester, 81 F.3d at 831; see Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990)(finding that the nonexamining physician's opinion "with nothing more" did not constitute substantial evidence). However, "[w]here the opinion of the claimant's treating physician is contradicted, and the opinion of a nontreating source is based on independent clinical findings that differ from those of the treating physician, the opinion of the nontreating source may itself be substantial evidence." Andrews, 53 F.3d at 1041. Independent clinical findings include "(1) diagnoses that differ from those offered by another physician and that are supported by substantial evidence, or (2) findings based on objective medical tests that the treating physician has not herself considered." Orn, 495 F.3d at 632 (internal citations omitted).

An ALJ "has a special duty to fully and fairly develop the record and to assure that claimant's interests are considered." Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). Pursuant to 20 C.F.R. §§ 404.1512(e) and 416.912(e), the Administration "will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, [or] the report does not contain all the necessary information . . . ." See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)(noting that "[i]f the ALJ thought he needed to know the basis of [the doctor's] opinions in order to evaluate them, he had a duty toconduct an appropriate inquiry").

In a February 12, 2008 Multiple Impairment Questionnaire, plaintiff's treating doctor, Edna Arteaga-Hernandez, M.D., a family practitioner, diagnosed plaintiff with insulin...

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