Sterling Widmark v. Jo Anne B. Barnhart, Commissioner of Social Security

O’SCANNLAIN, Circuit Judge,

concurring in part and dissenting in part:

I respectfully dissent from the court’s conclusion that the ALJ failed to give specific legitimate reasons based on substantial evidence to support his conclusion that the thumb abnormality Dr. Greenleaf observed did not significantly limit the range of work permitted by Widmark’s exertional limitations. Indeed, I am persuaded that substantial evidence supports denial of Widmark’s application for Disability Insurance Benefits and Supplemental Security Income.

Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.2001). “Under this standard, the Commissioner’s findings are upheld if supported by inferences reasonably drawn from the record.” Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1193 (9th Cir.2004). “[I]f evidence exists to support more than one rational interpretation, we must defer to the Commissioner’s decision.” Id. “[T]he court may not substitute its judgment for that of the Commissioner.” Edlund, 253 F.3d at 1156.

*1071In situations of conflicting medical evidence, such as this one, the ALJ, not a reviewing court, is charged with determining credibility and resolving the conflict. Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir.2003). We must defer to the ALJ’s decision to reject the opinion of a treating physician in favor of the conflicting opinion of an examining physician if the ALJ sets forth specific legitimate reasons based on substantial evidence in the record. Id. In this case, Dr. Greenleaf observed that although Wid-mark “can still grasp and manipulate articles in his right and left hand” and can “do pincher grasp and make an ‘okay’ sign,” his flexor tendon laceration on his right thumb “limits his fine fingering abilities.” The state agency physician concluded, however, that Widmark had no manipulative limitations. In resolving this conflict, the ALJ articulated the following reasons for concluding that Widmark’s manipulative limitations were not significant:

At one point, Dr. Greenleaf assessed laceration affecting the claimant’s right thumb, but he concluded that the claimant was not restricted as to grasping and manipulation with the hands. No other physician has cited any significant problems related to right thumb impairment, claimant has not alleged significant problems related to that type of condition, and there is no indication that any such problem interfered with his functioning in the past.

The majority labels these reasons for concluding that Widmark’s thumb does not significantly limit the range of work permitted by Widmark’s exertional limitations not “legitimate” because (1) in the majority’s view, Dr. Greenleaf s report both supported and undercut the existence of a significant manipulative limitation, (2) Wid-mark’s other treating physicians had no occasion to notice a significant manipulative limitation, and (3) we cannot expect Widmark to realize that his thumb limitation, if significant, would be relevant to the ALJ’s determination of his residual functional capacity.

I cannot agree with the majority’s conclusion that the ALJ misread Dr. Green-leafs report. To the contrary: it appears that the ALJ carefully read the report, acknowledged the existence of a thumb limitation, and reasonably concluded that, in Dr. Greenleaf s view, the limitation was not significant. Dr. Greenleafs letter, written for the purpose of informing the disability examiner of Widmark’s limitations, concludes that Widmark “can still grasp and manipulate articles in his right and left hand” and can “do pincher grasp and make an ‘okay’ sign.” In my view, this description of Widmark’s abilities is sufficient to support the ALJ’s conclusion that Widmark “was not restricted as to grasping and manipulation with the hands.” The ALJ could reasonably conclude that Dr. Greenleaf did not think the thumb abnormality was a significant problem.

Furthermore, there is no evidence in the record indicating that Widmark’s thumb injury has interfered with his past functioning. Widmark, who is now represented by counsel, does not contend that the ALJ should have asked him more detailed questions to elicit testimony about his thumb injury or that the ALJ otherwise shirked his duty to develop the record. As the majority acknowledges, even though Widmark was not represented by counsel before the ALJ, he was responsible for providing evidence for the ALJ to use in assessing his vocational limitations. See 20 C.F.R. §§ 404.1545(a)(3); 404.1512(c).

Because I would hold that the ALJ did not err by concluding that Widmark’s thumb abnormality is not a substantial vocational limitation, I also dissent from the court’s conclusion that the ALJ improperly *1072applied the Medical-Vocational Guidelines. Tackett v. Apfel, 180 F.3d 1094, 1102 (9th Cir.1999) (application of the grids is appropriate when the claimant’s non-exertional limitations do not significantly limit the range of work permitted by his exertional limitations).

I would affirm the district court’s opinion and order.