David Paulson v. Michael Astrue

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 30, 2009
• Docket: 08-36049
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 30 2009

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

DAVID PAULSON, No. 08-36049

Plaintiff - Appellant, D.C. No. 3:07-cv-00257-AC

v.

MICHAEL J. ASTRUE, Commissioner of MEMORANDUM * Social Security,

Defendant - Appellee.

Appeal from the United States District Court for the District of Oregon Anna J. Brown, District Judge, Presiding

Argued and Submitted December 11, 2009 Portland, Oregon

Before: FARRIS, D.W. NELSON, and BERZON, Circuit Judges.

David Paulson appeals the district court’s order affirming the

Commissioner’s decision denying Paulson Social Security Disability insurance

benefits. Because the Administrative Law Judge’s (“ALJ”) decision to discredit

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. various sources of evidence presented by Paulson and the ALJ’s determination that

Paulson’s condition does not meet or equal the requirements of Listing 1.04B are

both supported by substantial evidence, we affirm.

“[W]e review de novo the district court’s order upholding a decision of the

Commissioner denying benefits to an applicant. The Commissioner’s decision

must be affirmed by us if supported by substantial evidence, and if the

Commissioner applied the correct legal standards.” Batson v. Comm’r for Soc.

Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) (internal citations omitted).

We first hold that the ALJ’s decision to discredit Paulson’s testimony and

various medical opinions is supported by substantial evidence. Paulson’s doctors

consistently concluded that Paulson’s reported symptoms exceeded those that

could be attributable to their objective medical findings, and Paulson’s activities

contradict his reported limitations.

The ALJ also provided clear and convincing reasons for discrediting the

opinions of Drs. Kruger, Anderson, Jacobs, Green, and Gritzka.1 See Morgan v.

Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999). The ALJ properly

discredited Dr. Kruger’s opinion because it was based solely on an interview with

1 Because we affirm the ALJ’s challenged determinations on the merits, we do not address the Commissioner’s alternative argument that the law of the case precludes Paulson from challenging them here.

2 Paulson, whom the ALJ properly found not credible for the reasons given above.

The ALJ also properly discredited Dr. Anderson’s opinion because it was similarly

based on Paulson’s report of his subjective symptoms. The ALJ properly

discredited Dr. Jacobs’s opinion because it was inconsistent with Dr. Jacobs’s own

prior treatment notes, including those indicating that Paulson’s subjective

symptoms could not be explained by objective medical evidence. The ALJ,

therefore, also properly discredited Dr. Green’s opinion, which was based heavily

on Dr. Jacobs’s opinion. Further, the ALJ properly discredited Dr. Gritzka’s

opinion because Gritzka was neither a treating nor an examining physician, and

thus his opinion was superseded by the opinions of Paulson’s treating and

examining physicians. Finally, the ALJ did not err in relying on Dr. Carvalho’s

opinion, which constituted competent evidence.

The ALJ also did not err in failing to consider the opinion of Paulson’s

chiropractor, Mr. Christensen, because Mr. Christensen’s opinion contradicts

acceptable medical sources, which must be given greater weight. See 20 C.F.R. §

404.1513(d)(1); see also Bunnell v. Sullivan, 912 F.2d 1149, 1152 (9th Cir. 1990)

(“[A] chiropractor . . . is not considered an acceptable medical source. Although a

claimant is free to offer chiropractic evidence to help the Secretary understand his

inability to work, there is no requirement that the Secretary accept or specifically

3 refute such evidence.”) (internal citations omitted) (vacated and superseded on

rehearing on other grounds).

Second, we hold that the ALJ’s determination that Paulson’s condition does

not meet or equal the requirements of Listing 1.04B, Disorders of the Spine, 20

C.F.R. Pt. 404, Subpt. P, § 1.04, is supported by substantial evidence. The ALJ

noted that Paulson’s medical record contains various medical images of Paulson’s

back and related medical findings, none of which mention spinal arachnoiditis. See

20 C.F.R. Pt. 404, Subpt. P, § 1.04 (stating that arachnoiditis may be “confirmed

by . . . appropriate medically acceptable imaging”). The ALJ also did not err in

concluding that Paulson’s combined physical and mental impairments did not

equal this listing.

AFFIRMED.