FILED
UNITED STATES COURT OF APPEALS FEB 26 2010
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S . CO UR T OF AP PE A LS
DAVID PAULSON, No. 08-36049
Plaintiff - Appellant, D.C. No. 3:07-cv-00257-AC
District of Oregon,
v. Portland
MICHAEL J. ASTRUE, Commissioner of
Social Security Administration, ORDER
Defendant - Appellee.
Before: FARRIS, D.W. NELSON and BERZON, Circuit Judges.
The memorandum disposition filed on December 30, 2009, is withdrawn.
Appellant's Petition for Rehearing And Appellant's Petition for Rehearing En
Banc is denied as moot, without prejudice to refiling a subsequent petition for
rehearing and/or petition for rehearing en banc.
A new memorandum disposition is filed simultaneously with this order.
FILED
NOT FOR PUBLICATION FEB 26 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS
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 did not err by relying on the testimony of
vocational expert Wilson from a prior hearing before a different ALJ, Judge
Atµins. Though Paulson is correct that the ALJ slightly misstated Judge Atµins's
prior residual functional capacity determination, we see no reason to believe that
this was a new factual finding and not simply an unintentional mistaµe. The ALJ
stated several times in his opinion below that nothing he reviewed on remand
warranted modifying Judge Atµins's prior RFC findings and that those findings
should remain unchanged.
Second, we 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
2
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 Gritzµa.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
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. Gritzµa's
opinion because Gritzµa was neither a treating nor an examining physician, and
thus his opinion was superseded by the opinions of Paulson's treating and
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.
3
examining physicians. Finally, the ALJ did not err in relying on Dr. Carvalho's
opinion, which constituted competent evidence.
We further hold that the ALJ did not commit reversible error in failing to
consider the opinion of Paulson's chiropractor, Dr. Christensen, because Dr.
Christensen's opinion was also based on Paulson's report of his subjective
symptoms. Dr. Christensen's opinion also contradicts acceptable medical sources,
which are generally given greater weight. See 20 C.F.R. y 404.1513(d)(1); SSR
06-3p ('The fact that a medical opinion is from an 'acceptable medical source' is a
factor that may justify giving that opinion greater weight than an opinion from a
medical source who is not an 'acceptable medical source' because . . . 'acceptable
medical sources' 'are the most qualified health care professionals.').
Third, 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, y 1.04, is supported by substantial evidence. The ALJ
noted that Paulson's medical record contains various medical images of Paulson's
bacµ and related medical findings, none of which mention spinal arachnoiditis. See
20 C.F.R. Pt. 404, Subpt. P, y 1.04 (stating that arachnoiditis may be 'confirmed
by . . . appropriate medically acceptable imaging'). The ALJ also did not err in
4
concluding that Paulson's combined physical and mental impairments did not
equal this listing.
AFFIRMED.
5