Mahar v. Astrue

Filing 27

ORDER granting Defendant's 24 Cross-Motion for Summary Judgment; denying Plaintiff's 18 Motion for Summary Judgment. Signed by Judge Frederick J Martone on 3/27/09.(REW, )

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NOT FOR PUBLICATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) ) Michael J. Astrue, Commissioner of Social) ) Security Administration, ) ) Defendant. ) ) Ronald Mahar,

No. CV-08-0409-PHX-FJM ORDER

Plaintiff filed an application for supplemental security income benefits on June 30, 2005, alleging disability due to degenerative disc disease, degenerative joint disease, and facet arthritis of the lumbar spine, beginning January 7, 1994. Following a hearing, the administrative law judge ("ALJ") issued a decision finding that plaintiff was not disabled and denying benefits. The decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. Plaintiff then filed this action for judicial review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). We now have before us plaintiff's motion for summary judgment (doc. 18) and supporting memorandum (doc. 19), and defendant's cross-motion for summary judgment (doc. 24) and supporting memorandum (doc. 26). Neither party filed a response or reply.

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A district court may set aside a denial of benefits "only if it is not supported by substantial evidence or if it is based on legal error." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence is "relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion. Where the evidence is susceptible to more than one rationale interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Id. (citation omitted). The ALJ found that plaintiff can lift or carry 10 pounds frequently and 20 pounds occasionally; sit, stand or walk for six hours in an eight-hour day; with no limits on his ability to operate hand or foot controls. Tr. 16. The ALJ concluded that plaintiff retains the residual functional capacity to perform a full range of light work, and therefore he is not disabled. Id. Plaintiff argues that the ALJ erred in discounting the opinion of treating physician, Belal Sharaf, M.D. Dr. Sharaf completed a medical assessment, indicating that plaintiff retained the residual functional capacity to sit for three hours, stand/walk for two hours; lift 6 to 10 pounds frequently, and 21 to 25 pounds occasionally­findings that would preclude him from full-time employment. Tr. 178-79. The ALJ rejected Dr. Sharaf's opinion to the extent that it was inconsistent with the record as a whole, which otherwise indicated that plaintiff is not disabled. The ALJ relied on the opinion of examining physician Ronald D. Barker, M.D., who described plaintiff "with heavy calluses on his hands, well-developed musculature in both extremities, back and abdomen and deeply tanned from the sun," indicating "ongoing heavy physical activity." Tr. 142, 18. Dr. Barker noted that plaintiff could walk on his heels and toes, hop on each foot, squat and rise from a squatting position without assistance. Tr. 18. He experienced no pain with straight leg raising, either sitting or lying down. (Plaintiff denied that he hopped up and down or raised his legs during his examination by Dr. Barker.) Tr. 18. Dr. Barker concluded that plaintiff retained the functional capacity to perform work at a medium level of exertion.

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The ALJ also relied on the opinion of treating pain management specialist, Albert Yeh, M.D., who consistently noted that plaintiff did not have any pain symptoms on straight leg raising, focal weakness, muscular atrophy or cervical radicular pain. Tr. 18. He further noted that plaintiff had normal reflexes but had some pain over the lumbar facet joints upon palpation and spasm. He diagnosed plaintiff's lumbar degenerative joint disease/facet arthritis as mild. Tr. 19. An examining physician's independent clinical findings that differ from the findings of a treating physician are substantial evidence to support an ALJ's decision to discount the opinion of a treating physician. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). Dr. Barker and Dr. Yeh's independent examinations support the ALJ's conclusion that plaintiff's impairment is not so severe as to prevent him from working. Dr. Sharaf based his assessment on notes from Dr. Yeh, yet Dr. Yeh's assessment did not support a finding of disability. Therefore, the ALJ properly rejected Dr. Sharaf's opinion to the extent it was inconsistent with Dr. Yeh's findings, and to the extent it was inconsistent with the record as a whole. Plaintiff also argues that the ALJ erred because he mistakenly reported that plaintiff was 36 years old at the time of his application for benefits, when in fact he was 47 years old. The regulations define a "younger person" as one who is "under age 50." 20 C.F.R. § 416.963(c). Notwithstanding the ALJ's misstatement, plaintiff fit within the category of "younger person" under the regulations, and therefore plaintiff's age was not a determining factor in the ALJ's conclusion that plaintiff was not disabled. Based on the foregoing, we conclude that substantial evidence in the record supports the ALJ's determination that plaintiff is not disabled. IT IS ORDERED GRANTING defendant's cross-motion for summary judgment (doc. 24), and DENYING plaintiff's motion for summary judgment (doc. 18). DATED this 27th day of March, 2009.

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