Chamblee v. Astrue

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATION: It is Ordered that Magistrate Judge Ferraro's Report and Recommendation (Doc. 21 ) is hereby ACCEPTED and ADOPTED as the findings of fact and conclusions of law by this Court. Signed by Chief Judge Raner C Collins on 9/11/2013. (MFR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jackie Sue Chamblee,
Plaintiff,

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vs.

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Carolyn W. Colvin,
Acting Commissioner of the
Social Security Administration,

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Defendant.

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No. CV- 12-222-TUC-RCC
ORDER

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Before the Court is the May 29, 2013, Report and Recommendation (R&R) from
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Magistrate Judge D. Thomas Ferraro (Doc. 21) recommending that this court remand the case
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for further development of the record. 42 U.S.C. § 405(g). Defendant timely filed objections
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to the R&R (Doc. 22), and the objections have been fully briefed. For the following reasons,
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this Court will adopt the R&R.
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I.

BACKGROUND

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The factual and procedural background in this case is thoroughly detailed in the
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Magistrate Judge Ferraro’s R & R (Doc. 21). This Court fully incorporates by reference the
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Background section of the R & R into this Order.
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II.

LEGAL STANDARD

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The duties of the district court in connection with a R&R are set forth in Rule 72 of
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the Federal Rules of Civil Procedure and 28 U .S.C. § 636(b)(1). The district court may
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“accept, reject, or modify the recommended disposition; receive further evidence; or return
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the matter to the magistrate judge with instructions. FED.R.CIV.P. 72(b)(3); 28 U.S.C. §

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636(b)(1). The Court will not disturb a Magistrate Judge's Order unless his factual findings

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are clearly erroneous or his legal conclusions are contrary to law. 28 U.S.C. § 636(b)(1)(A).

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“[T]he magistrate judge's decision ... is entitled to great deference by the district court.”

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United States v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir.2001). Where the parties object

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to a R&R, “[a] judge of the [district] court shall make a de novo determination of those

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portions of the [R&R] to which objection is made.” 28 U.S.C. § 636(b)(1); see Thomas v.

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Arn, 474 U.S. 140, 149-50 (1985).

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III.

DISCUSSION

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Magistrate Judge Ferraro issued an R&R recommending that this Court enter an order

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remanding the case to the ALJ for further consideration. Citing Lester v. Chater, 81 F.3d

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821, 830-31 (9th Cir. 1995), Judge Ferraro found that the ALJ was required to provide

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‘specific and legitimate reasons,’ supported by substantial evidence, before rejecting the

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opinion of examining physician Petronella in favor of two non-examining physicians

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opinions. Judge Ferraro also found that the ALJ erred in not including in his hypothetical

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the environmental exposure limitations found by Drs. Maloney and Green and not explaining

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the weight given to Dr. Maloney’s 2008 and 2010 opinions. (Doc. 21 at p. 7). Judge Ferraro

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recommended that the District Court enter an order remanding the case to the ALJ for further

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consideration. Upon remand, the ALJ should “fully consider the opinions of Drs. Petronella,

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Maloney, Green, Garland and Kerns, reassess Plaintiff’s RFC in light of that reconsideration

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and obtain additional testimony from a VE regarding Chamblee’s RFC.” (Doc. 21 at p. 8).

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In her objections to the R&R, the Commissioner contends that the ALJ’s decision is

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properly supported by the fact that Chamblee’s neck and back disorders were not “severe”

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because the treatment consisted of only medication, the disorders did not require ongoing

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treatment, and the disorders did not result in limitations. The Commissioner asserts that the

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ALJ provided adequate reasons for not fully crediting examining physician Petronella’s

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opinion and was entitled to rely upon non-examining physician Maloney’s opinion. (Doc. 22

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at p.3). In regards to the omission of the opinions by Drs. Maloney and Green in the
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determinative hypothetical question discussing Chamblee’s environmental limitations, the

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Commissioner argues that “environmental restrictions have only a minimal impact on the

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broad world of work because most job environments do not involve such conditions.” (Doc.

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22 at p. 10). Furthermore, the Commissioner asserts that even assuming the limitations

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specified by Drs. Petronella, Maloney, and Green were supported by the record, which the

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Commissioner does not concede, the ALJ’s failure to find such was harmless error.

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Chamblee, on the other hand, contends that the ALJ erred in his finding that “no evidence”

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supported Dr. Petronella’s opinions and argues that Chamblee’s disorders did in fact create

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significant limitations such that the ALJ’s errors were harmful. (Doc. 23, p. 2-5).

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The court may overturn the decision to deny benefits only “when the ALJ’s findings

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are based on legal error or are not supported by substantial evidence in the record as a

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whole.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). Substantial evidence

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is “more than a mere scintilla but less than a preponderance.” Tackett v. Apfel, 180 F.3d

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1094, 1098 (9th Cir. 1999) (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir.

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1992)).

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The Ninth Circuit in Lester v. Chater, held that the ALJ committed an error of law by

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rejecting the opinions of the examining physicians because they conflicted with the testimony

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of a non-examining medical advisor. 81 F.3d at 830. Generally, the ALJ should give more

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weight to the opinion of physicians who treat the claimant than to the opinion of physicians

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who do not treat the claimant.

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examining physician is entitled to greater weight than the opinion of a non-examining

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physician. Id. (citing Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990). “The opinion of

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an examining doctor, even if contradicted by another doctor, can only be rejected for specific

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and legitimate reasons that are supported by substantial evidence in the record.” Id. (citing

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Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). A non-examining physician’s

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opinion by itself is insufficient to constitute substantial evidence that justifies the rejection

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of an examining physician’s opinion. Id. at 831.

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Id. Accordingly, the court found that the opinion of an

“The ALJ is responsible for determining credibility, resolving conflicts in medical
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testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.

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1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). By wholly rejecting

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Dr. Petronella’s opinion based on there being “no evidence” to support it, the ALJ erred by

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not properly resolving the conflict in the medical testimony and failing to provide specific

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and legitimate reasons for rejecting Dr. Petronella’s opinion. Further, non-examining

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physician Maloney’s opinion by itself does not constitute substantial evidence for the

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rejection of examining physician Petronella’s opinion. Lester, 81 F.3d. at 831. The Court,

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therefore, rejects the Commissioner’s argument that the ALJ provided adequate reasons for

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not fully crediting examining physician Petronella’s opinion and was entitled to rely upon

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Dr. Maloney’s opinion.

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The Court also rejects the Commissioner’s argument regarding the ALJ’s exclusion

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of the opinions by Drs. Maloney and Green in the determinative hypothetical question to the

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vocational expert environmental limitations. The ALJ is required to evaluate and explain in

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the decision the weight given to the opinions of non-examiners Drs. Maloney and Green. 20

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C.F.R. § 404.1527(b), (c), & (e)(2)(ii) (2013).

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Accordingly,

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IT IS ORDERED that Magistrate Judge Ferraro’s Report and Recommendation (Doc.

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21) is hereby ACCEPTED and ADOPTED as the findings of fact and conclusions of law

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by this Court.

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DATED this 11th day of September, 2013.

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