EDMUND F. BRENNAN, Magistrate Judge.
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. The parties' have filed cross-motions for summary judgment. For the reasons discussed below, plaintiff's motion is granted, defendant's motion is denied and the matter is remanded for further proceedings.
Plaintiff filed an application for a period of disability and DIB on June 19, 2008, alleging that she had been disabled since December 1, 2006. Administrative Record ("AR") 217-221. Plaintiff's application was initially denied on November 4, 2018, and upon reconsideration on January 26, 2009. Id. at 141, 143-146. On September 10, 2009, a hearing was held before administrative law judge ("ALJ") Walter Orr. Id. at 52-78. Plaintiff was represented by counsel at the hearing, at which she and a Vocational Expert ("VE") testified. Id.
On January 26, 2010, the ALJ issued a decision finding that plaintiff was not disabled under sections 216(i) and 223(d) of the Act.
A second hearing was held before the ALJ on October 14, 2012. Id. at 79-107. Plaintiff was again represented by counsel at the hearing, at which she, a VE, and a medical expert testified. Id. at 79-80. On April 5, 2012, the ALJ issued a decision, again finding that plaintiff was not disabled under section 216(i) and 223(d) of the Act. Id. at 25-43. The ALJ made the following specific findings:
Id. at 27-42.
Plaintiff sought Appeals Council review, id. at 20-21, which was denied on May 31, 2013, leaving the ALJ's April 5, 2012 decision as the final decision of the Commissioner. Id. 1-5.
The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).
The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). "`It means such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).
"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
Plaintiff argues that the ALJ erred in (1) weighing the various medical opinions in the record; and (2) failing to provide clear and convincing reasons for discrediting plaintiff's credibility.
Plaintiff contends that the ALJ improperly rejected the opinions of Dr. Morrow and Dr. Young, both treating physicians, Dr. Mount, an examining physician, and Dr. Cowles, a non-examining medical expert who testified at the October 14, 2012 hearing. ECF No. 12 at 15-24.
To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Id. Ordinarily, more weight is given to the opinion of a treating professional, who has a greater opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1295 (9th Cir. 1996). An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons. Lester, 81 F.3d at 831. In contrast, a contradicted opinion of a treating or examining professional may be rejected for "specific and legitimate" reasons that are supported by substantial evidence. Id. at 830. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by a supported examining professional's opinion (e.g., supported by different independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). However, "[w]hen an examining physician relies on the same clinical findings as a treating physician, but differs only in his or her conclusions, the conclusions of the examining physician are not `substantial evidence.'" Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007).
Plaintiff first argues that the ALJ failed to provide sufficient reasons for rejecting Dr. Morrow's opinion. Dr. Morrow, one of plaintiff's treating doctors, diagnosed plaintiff with bilateral carpal tunnel syndrome and cervical radiculopathy on September 7, 2007. AR at 562. He noted that plaintiff had previously been diagnosed with bipolar disorder. Id. Dr. Morrow completed an impairment questionnaire on December 13, 2008, which evaluated plaintiff's physical capacity. Id. at 408-415. Dr. Morrow opined that plaintiff could sit for 8 hours in an 8-hour workday, but stand/walk for only one hour in an eight-hour day. Id. at 410. He opined that plaintiff must get up and walk around every hour for ten minutes. Id. at 410-411. He further opined that plaintiff's symptoms would likely increase if she were placed in a competitive work environment; that she could not keep her neck in a constant position; and she could not maintain fulltime work in any capacity. Id. at 412-413.
The record also contains a contrary opinion from Dr. James Wright, a state agency non-examining physician that also assessed plaintiff's physical limitations. Id. at 430-437. Dr. Wright completed a Residual Functional Capacity form on October 31, 2008. Id. at 430-437.
The ALJ explained that plaintiff drives, takes care of her grandson, does light chores such as dusting, shops for groceries, cooks, and attends to her personal hygiene. Id. at 35, 37-38; see also 60-62. Daily activities that are contrary to the limitations opined by a doctor serve as a legitimate reason for rejecting the doctors opinion. See Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 601-602 (9th Cir.1999) (an ALJ may reject a treating opinion that is inconsistent with other evidence in the record, including plaintiff's reported daily activities). It is not clear, however, how the daily activities referenced by the ALJ are inconsistent with Dr. Morrow's opinion. Dr. Morrow's opinion specifically provided that plaintiff could sit for eight hours in a workday and could stand for one. AR 410. An individual with these limitations would still be able to drive a car, take care of a child, go shopping, perform light housework, cook meals, and perform personal hygiene. Accordingly, the ALJ's finding that Dr. Morrow's opinion is inconsistent with plaintiff's daily activities is not supported by substantial evidence.
The ALJ also rejected Dr. Morrow's opinion because plaintiff did not follow Dr. Morrow's treatment plan. Id. at 39. Dr. Morrow referred plaintiff for a neurosurgery consultation, but plaintiff failed to go through with the consultation. Id. 562. Plaintiff contends, however, that she did not seek treatment because of a lack of funds, arguing that her failure to have surgery that she cannot pay for cannot be a legitimate reason for rejecting Dr. Morrow's opinion as to her functional limitations. ECF No. 11-1 at 13-15. It is unclear how the ALJ reached the conclusion that plaintiff's inability to pay for the needed surgery undermines the credibility of her treating doctor's opinions as to the need for the surgery and as to the functional limitations that result from the untreated condition. There are some circumstances where failure to seek and comply with treatment affects credibility. A plaintiff's noncompliance with a treatment plan can serve as a specific and legitimate basis for rejecting a treating physician's opinion. Owen v. Astrue, 551 F.3d 792, 799-800 (9th Cir. 2008). Similarly, as a general rule, a failure to seek treatment for an allegedly debilitating medical problem may be a valid consideration by the ALJ in discounting a claimant's allegations of associated pain. See Flaten v. Secretary of HHS, 44 F.3d 1453, 1464 (9th Cir. 1995). None of these circumstances are present here.
The need for the treatment appears to be beyond question. The failure to obtain the needed treatment is due to lack of resources. That is not a legitimate basis for rejecting Dr. Morrow's opinion. Cf. Smolen v. Charter, 80 F.3d 1273, 1284 (9th Cir. 1996) (failure to obtain treatment due to lack of funds is not a clear and convincing reason for discrediting a plaintiff's testimony).
Further, there is little question from the record that plaintiff lacked the resources to obtain the treatment. A treatment note from Dr. Morrow indicated that plaintiff did not have surgery due to "lack of funds." AR 560. A psychiatric emergency service evaluation indicates that plaintiff reported becoming unemployed and losing her health insurance. Id. at 365. This evidence demonstrates that plaintiff failed to follow through with the surgical consultation was due to a lack of funds and insurance. Accordingly, the ALJ's second reason for rejecting Dr. Morrow's opinion, i.e. that she did not follow through with a proscribed treatment plan, is not legitimate.
The Commissioner argues that the ALJ also properly rejected Dr. Morrow's opinion because it was not consistent with the objective record evidence. ECF No. 13-1 at 12. The ALJ provided the following:
Although the ALJ properly observed that he is not required to give controlling weight to an opinion that is unsupported or inconsistent with substantial evidence, the ALJ did not actually find that Dr. Morrow's opinion was unsupported and inconsistent with the record. Instead, the ALJ relied on plaintiff's failure to follow through with a surgical consultation, which was due to her lack of funds. As the ALJ did not rely on any inconsistency between Dr. Morrow's opinion and the record, this reason is not a proper basis for upholding the ALJ's decision. See Barbato v. Comm'r of Soc. Sec. Admin., 923 F.Supp. 1273, 1276 n. 2 (C.D. Cal. 1996) ( "[T]he Commissioner's decision must stand or fall with the reasons set forth in the ALJ's decision."); Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) ("[W]e are wary of speculating about the basis of the ALJ's conclusion").
The Commissioner also argues that Dr. Morrow was not a treating physician because he only saw plaintiff three times. Given the financial constraints noted above, the court places little emphasis on the number of visits as only three. But there is no doubt from the record that Dr. Morrow's services were sought as a treating doctor and not in consultation for supporting or opposing a claim for disability. Further, the distinction the Commissioner seeks to make here is ultimately immaterial. The ALJ was required to provide specific and legitimate reasons for rejecting Dr. Morrow's opinion regardless of whether he is characterized as an examining or treating physician. Lester, 81 F.3d at 830. The ALJ has not done so. Accordingly, he did not provide specific and legitimate reasons for rejecting Dr. Morrow's opinion.
The ALJ failed to apply the proper legal standard and support his decision with substantial evidence. Therefore, it is hereby ORDERED that:
Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).
The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.
