Case No. ED CV 04-1083 AN.
November 2, 2005
MEMORANDUM AND ORDER
Pursuant to 42 U.S.C. § 405(g), Plaintiff is seeking judicial review of the final decision of the Commissioner of the Social Security Administration (the "Commissioner") denying her claims for disability insurance benefits ("DIB") and supplemental security income ("SSI") pursuant to Titles II and XVI of the Social Security Act ("Act"). Both parties have consented to proceed before the undersigned Magistrate Judge. In accordance with the Court's Case Management Order, the parties have filed a joint stipulation and request for an order summarily deciding the issues concerning remand and/or immediate payment of benefits ("JS").
The relevant background facts are familiar to both parties and Plaintiff has stipulated that the decision of the Administrative Law Judge ("ALJ") fairly and accurately summarizes the hearing testimony and medical evidence in the record except as noted in her contentions.
In the JS, Plaintiff contends the ALJ erred by: (1) improperly rejecting the opinion of her treating physician John Newman, M.D., and (2) failing to obtain the testimony of a vocational expert. The Commissioner disagrees.
After reviewing the parties' respective contentions and the record as a whole, the Court finds Plaintiff's contentions lack merit and are rejected for the reasons expressed by the Commissioner in her portions of the JS and the following reasons.
A treating physician's opinion is entitled to more weight than the opinion of a non-treating physician. Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th Cir. 1995). However, the opinion of a non-treating physician may serve as substantial evidence for rejecting the testimony of a treating physician when the non-treating physician's opinion is supported by independent clinical findings or other evidence in the record. Id.; see also Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Here, the opinion of the examining physician, Oscar S. Gluck, M.D., was supported by independent clinical findings and served as substantial evidence for the ALJ to reject Dr. Newman's opinion. [Administrative Record ("AR") at 19, 139-40, 240.] Moreover, the ALJ appropriately discounted Dr. Newman's opinion because it was not adequately supported by clinical records or treatment records. [AR at 19]; Thomas, 278 F.3d at 957.
Testimony of a vocational expert may be required only at step five, after the burden has shifted to the Commissioner. Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (a vocational expert's testimony useful but not required at step four). Thus, the ALJ's determination at step four that Plaintiff was capable of performing her past work did not require the testimony of a vocational expert. Id.