MEMORANDUM DECISION AND ORDER

SUZANNE H. SEGAL, Magistrate Judge.

I.

INTRODUCTION

Christopher B. Nash ("Plaintiff") seeks review of the final decision of the Commissioner of the Social Security Administration (the "Commissioner" or the "Agency") denying his application for Disability Insurance Benefits ("DIB"). The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. For the reasons stated below, the decision of the Commissioner is REVERSED and REMANDED for further administrative proceedings consistent with this decision.

II.

PROCEDURAL HISTORY

On November 15, 2011, Plaintiff filed an application for DIB, claiming that he became disabled on March 6, 2011. (Administrative Record ("AR") 134-38). Plaintiff based his alleged disability on a back injury, bilateral carpal tunnel, coal miner's fracture of the neck, and right foot numbness. (AR 159, 252). The Agency denied Plaintiff's application on February 23, 2012 (AR 77-81) and upon reconsideration on August 21, 2012. (AR 84-89).

Plaintiff requested a hearing, which was held before Administrative Law Judge ("ALJ") Marti Kirby on June 17, 2013 (the "ALJ Hearing"). (AR 37-74). Vocational expert ("VE") Ronald Hatakeyama also testified. (AR 65-72). On June 28, 2013, the ALJ issued an unfavorable decision. (AR 22-33). Plaintiff sought review before the Appeals Council (AR 90-91), which the Council denied on October 9, 2014. (AR 1-4). The ALJ's determination thus became the final decision of the Commissioner. Plaintiff filed the instant action on December 8, 2014.

III.

THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

To qualify for disability benefits, a claimant must demonstrate a medically determinable physical or mental impairment that prevents him from engaging in substantial gainful activity and that is expected to result in death or to last for a continuous period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work he previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).

To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are:

Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. §§ 404.1520(b)-(g)(1) & 416.920(b)-(g)(1).

The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante, 262 F.3d at 953-54. Additionally, the ALJ has an affirmative duty to assist the claimant in developing the record at every step of the inquiry. Id. at 954. If, at step four, the claimant meets his burden of establishing an inability to perform past work, the Commissioner must show that the claimant can perform some other work that exists in "significant numbers" in the national economy, taking into account the claimant's residual functional capacity ("RFC"), age, education, and work experience. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). The Commissioner may do so by the testimony of a VE or by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 (commonly known as "the Grids"). Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). When a claimant has both exertional (strength-related) and non-exertional limitations, the Grids are inapplicable and the ALJ must take VE testimony. Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)).

IV.

THE ALJ'S DECISION

The ALJ employed the five-step sequential evaluation process. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful employment since his alleged onset date of March 6, 2011. (AR 24). At step two, the ALJ found that Plaintiff had the severe physical impairments of below knee amputation of the left leg (with prosthesis), degenerative disc disease and degenerative joint disease of the cervical spine, degenerative disc disease of the lumbar spine, status post lumbar fusion in June 2011, bilateral carpal tunnel syndrome, status post carpal tunnel release in June 2011, bilateral shoulder impingement, and obesity. (Id.).

At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.1525, 404.1526). (AR 25). The ALJ also noted that there is no medical listing for obesity and found that Plaintiff's obesity did not result in the "severity of symptoms required to meet or equal a medical listing." (Id.). The ALJ then found that Plaintiff had the following RFC:

(Id.).

In making this finding, the ALJ considered Plaintiff's subjective allegations, but did not find them fully credible. (AR 26-27). The ALJ also rejected Plaintiff's treating physician Darren L. Bergey's opinion that Plaintiff could lift, push, and pull no more than ten pounds, he could not perform overhead work or climb, and he would be absent from work more than three times a month. (AR 30).

At step four, the ALJ found that Plaintiff was unable to perform past relevant work as a line installer. (AR 31). At step five, the ALJ found that, considering Plaintiff's age, education, work experience and RFC, he could perform jobs that exist in significant numbers in the national economy. (AR 32). Based on the VE's testimony, the ALJ concluded that Plaintiff could perform the requirements of lens inserter, bench assembler, and addresser. (Id.). Accordingly, the ALJ found that Plaintiff was not disabled. (AR 33).

V.

STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The court may set the decision aside when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097). "Substantial evidence is more than a scintilla, but less than a preponderance." Reddick, 157 F.3d at 720 (citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). It is "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Id. (citing Jamerson, 112 F.3d at 1066; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1997)).

To determine whether substantial evidence supports a finding, the court must "`consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing that conclusion, the court may not substitute its judgment for the Commissioner's. Reddick, 157 F.3d at 720-21 (citing Flaten v. Sec'y, 44 F.3d 1453, 1457 (9th Cir. 1995)).

VI.

DISCUSSION

The ALJ Failed To Properly Consider The Opinion Of Plaintiff's Treating Physician

Plaintiff asserts that the ALJ failed to provide specific and legitimate reasons for rejecting the opinion of his treating physician, Dr. Bergey. (Plaintiff's Memorandum in Support of Complaint (the "MSC"), Dkt. No. 14, at 6). The Court agrees.

An ALJ must afford the greatest weight to the opinion of the claimant's treating physician. The opinions of treating physicians are entitled to special weight because the treating physician is hired to cure and has a better opportunity to know and observe the claimant as an individual. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003); Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). Where the treating doctor's opinion is not contradicted by another doctor, it may be rejected only for "clear and convincing" reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended). Even if the treating physician's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing specific, legitimate reasons, supported by substantial evidence in the record. Id. at 830-31; see also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007); Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

Dr. Bergey, an orthopedic spine surgeon, treated Plaintiff from September 2010 to April 2013. (See AR 201-51, 290-373, 404-18, 424-47, 517-30, 605-753).1 At the initial evaluation, Plaintiff reported having "lower back and mid back pain and stiffness with occasional numbness down his right leg." (AR 367). As a result, Dr. Bergey recommended diagnostic facet blocks at L4 through S1. (Id.). In January 2011, despite receiving the diagnostic facet blocks, Plaintiff continued to have back and leg pain. (AR 360-62). In February 2011, Dr. Bergey opined that Plaintiff was a surgical candidate and requested authorization for an "L4-5 and L5-S1 discectomy and fusion with cage and instrumentation[] and L4-5, L5-S1 bilateral decompression surgery with anterior and posterior fusion." (AR 251). In June 2011, Plaintiff underwent the surgery, as well as a left carpal tunnel release. (See AR 240, 489-90).

Dr. Bergey then treated Plaintiff with several appointments between July 2011 through April 2013. (See AR 226-29 (July 2011); AR 222-24 (September 2011); AR 213-17 (October 2011); AR 208-12 (November 2011); AR 305-13 (February 2012); AR 298-304 (June 2012); AR 290-97 (July 2012); AR 444-47 (October 2012); AR 438-43 (December 2012); AR 433-37 (January 4, 2013); AR 429-32 (January 9, 2013); AR 424-28 (March 2013); AR 414-18 (April 9, 2013); AR 405-09 (April 19, 2013)). During that time, Dr. Bergey treated Plaintiff not only for continuing back pain, but also for additional impairments related to his neck, shoulders, and right hand/wrist. (Id.).

On April 23, 2012, Dr. Bergey completed a "Physical Residual Functional Capacity Questionnaire." (AR 264-68). After treating Plaintiff for an extended period of time, Dr. Bergey made several conclusions regarding Plaintiff's limitations. Dr. Bergey described Plaintiff's prognosis as "poor." (AR 264). Plaintiff's symptoms were described as "low back pain and stiffness . . . numbness right foot and bilateral lower extremity numbness and tingling; restricted range of movement; [increased] pain [with] overhead activity." (Id.). Dr. Bergey rated Plaintiff's pain as "8/10". He noted that "pain and stiffness [increases] [with] bending, sitting and standing; looking up increases neck pain." (Id.). For clinical findings and objective signs, Dr. Bergey wrote: "[T]enderness over the occipital region of the l/spine. Restricted ROM l/spine. Orthopedic testing increases local neck pain." (AR 254-265). Dr. Bergey stated that the impairments could be expected to last "at least twelve months." (AR 265). Dr. Bergey found that Plaintiff's pain or other symptoms would "constantly" interfere with attention and concentration. (Id.)

Dr. Bergey opined that Plaintiff could sit and stand for less than two hours in an eight-hour workday and walk only one block without resting and sitting. (AR 266). Plaintiff would also need to walk around every thirty minutes for fifteen minutes in an eight-hour workday. (Id.). He would need to shift positions from sitting, standing or walking. (Id.). With prolonged sitting, he would need to elevate his legs. (AR 267). He would also need unscheduled breaks three to four times a day for fifteen minutes. (Id.). Plaintiff could occasionally lift ten to twenty pounds. (Id.). He could also only bend and twist 25% of the time during an eight-hour workday. (Id.). Finally, Plaintiff would need to be absent from work twice a month due to his impairments and treatment. (AR 268).

Between February 2012 and January 2013, due to Plaintiff's impairments, Dr. Bergey opined that Plaintiff was "temporarily partially disabled" and "prescribed modified duty" of "[n]o lifting, pushing, pulling greater than 101bs," "[n]o overhead work," and "[n]o climbing." (AR 292, 303, 312, 436, 447). In January 2013, Dr. Bergey opined that Plaintiff's persistent bilateral shoulder pain "failed to improve with conservative care." (AR 431). In March 2013, Dr. Bergey's diagnoses of Plaintiff's impairments included C3-4 disc degeneration, C3-4 facet arthropathy, C spinous process fracture, bilateral carpal tunnel syndrome, L4 through S1 facet arthropathy, L4 through S1 disc degeneration, right leg radiculopathy, bilateral shoulder impingement syndrome, status post left carpal tunnel release, and status post L4-S1 anterior and posterior fusion with cage and instrumentation. (AR 416-17). In March 2013, Dr. Bergey also declared Plaintiff "[t]emporarily [t]otally [d]isabled" due to ongoing "back/leg pain intolerance" and until Plaintiff could get "better control of his pain." (AR 426). In April 2013, the last record of treatment before the hearing, Dr. Bergey noted that Plaintiff's right shoulder MRI scan revealed mild supraspinatus and infraspinatus tendinosis, tearing of the posterior superior posterior labrum with adjacent para labral cyst, and moderate AC arthrosis. (AR 407, 416). Dr. Bergey also observed that an EMG revealed right carpal tunnel. (AR 408). Based on the objective medical findings and ineffectiveness of conservative care, Dr. Bergey recommended that Plaintiff undergo right shoulder surgery and a right carpal tunnel release. (Id.).

In a June 5, 2013 "Physical Residual Functional Capacity Questionnaire," Dr. Bergey diagnosed Plaintiff with C3-4 disc degeneration, C3-4 facet arthropathy, C6 spinous process fracture, and bilateral carpal tunnel syndrome. (AR 749-53). Dr. Bergey noted that Plaintiff's impairments were being treated with physical therapy, pain management and pain medications including Nucynta, Percocet and Xanax. (AR 750). He also opined that Plaintiff would need to be absent from work more than three times a month due to his impairments or treatment. (AR 753).

The ALJ gave "little weight" to "Dr. Bergey's opinions from 2012 and 2013 that [Plaintiff] could lift, push, and pull no more than 10 pounds; he could not perform overhead work or climb; and he could be absent from work more than 3 times a month." The ALJ found that these opinions were "not consistent with the objective evidence as a whole." (AR 30-31). The ALJ further rejected Dr. Bergey's opinion because:

(AR 30-31) (internal citations omitted).

The ALJ found that Dr. Bergey's statement that Plaintiff was "temporarily totally disabled" had "no probative value." In particular, the ALJ found this statement inconsistent with the objective medical evidence. Furthermore, the ALJ concluded that because Drs. Bergey and Suzuki examined Plaintiff "in the context of a workers compensation claim," the credibility and relevance of their medical opinions were "affected" and therefore not entitled to any weight. (AR 31).

As discussed more fully below, the Court finds that the ALJ's reasons for rejecting Dr. Bergey's opinions were not "specific and legitimate reasons." As such, remand is required.

A. The ALJ Erred In Rejecting Dr. Bergey's Opinion On The Grounds That Plaintiff Showed "Some Improvement"

The ALJ rejected Dr. Bergey's opinion because "[a]fter surgery, physical examinations showed some improvement with [Plaintiff's] lumbar spine." (AR 30). The ALJ cites to Dr. Bergey's treatment notes from October 2012 through April 2013 indicating that Plaintiff "stopped exhibiting diminished sensation, but continued showing lumbar paravertebral tenderness." (Id.). While those treatment notes reflect that Plaintiff stopped exhibiting diminished sensation of the lumbar spine, the ALJ fails to mention that those same treatment notes and other notes in the record also show that Plaintiff's back pain continued to be severe and constant. Moreover, Plaintiff struggled with other significant impairments, which did not show improvement or stabilization. For example, even after the surgery, Plaintiff frequently complained of low back pain, low back stiffness and/or numbness in the lower extremities, for which Dr. Bergey continued to evaluate and treat Plaintiff for until 2013. (AR 209, 214, 218, 226, 264, 299, 307, 406, 415, 425, 434, 439, 445).

Dr. Bergey also treated Plaintiff for neck, bilateral shoulder and right hand impairments. (AR 209, 213-14, 218, 299, 307, 406, 415, 425, 430, 434, 439, 444-45). With respect to Plaintiff's cervical spine and upper extremities, Dr. Bergey observed tenderness of the muscles, reduced range of motion and no bilateral bicep reflexes. (AR 209, 214-15, 219, 264, 300, 309, 434, 439-40, 445). Plaintiff was diagnosed with cervical strain, C6 spinous process fracture, C3-4 disc degeneration, and C3-4 facet arthropathy. (AR 211, 215, 302, 311, 407, 416, 426, 430-31, 441, 446). With respect to Plaintiff's shoulders, Dr. Bergey found tenderness of the muscles (AR 406, 434, 440, 445) and pain with a range of motion (AR 425, 430, 434). Plaintiff's shoulders also exhibited "[m]ildly positive impingement sign bilaterally, positive Tinel's sign on the right" and "[n]umbness in the median nerve distribution." (AR 406; see also AR 416, 425, 430). An MRI of Plaintiff's right shoulder showed mild supraspinatus and infraspinatus tendinosis, tearing of the posterior superior posterior labrum with adjacent para labral cyst, and moderate AC arthrosis. (AR 407, 416). Plaintiff was diagnosed with bilateral shoulder impingement syndrome. (AR 407, 417, 426, 431). With respect to Plaintiff's right hand, Dr. Bergey observed that an "EMG show[ed] right carpal tunnel, which continues to inhibit the use of [Plaintiff's] right hand in an effective manner." (AR 408). To treat Plaintiff's impairments, Dr. Bergey prescribed pain management, injections, physical therapy, radiofrequency ablation, narcotic pain medications and surgery. (AR 265, 292, 301-02, 308, 312, 406, 408, 415, 417, 425, 430, 435-36, 441, 446).

Between February 2012 and January 2013, Dr. Bergey opined that Plaintiff was "temporarily partially disabled" and "prescribed modified duty" of "[n]o lifting, pushing, pulling greater than 101bs," "[n]o overhead work," and "[n]o climbing. (AR 292, 303, 312, 436, 447). In March 2013, Dr. Bergey declared Plaintiff "temporarily totally disabled" due to "ongoing back/leg pain, intolerance to extensive sitting or standing, gradually worsening bilateral shoulder complaints pending diagnostic imaging, left carpal tunnel syndrome status post surgery, and active dominant hand, right carpal tunnel syndrome" and because Plaintiff would be "unable to participate without significantly increasing his medications." (AR 426). Finally, in April 2013, due to Plaintiff's persistent shoulder pain and right hand carpal tunnel and the ineffectiveness of conservative treatment, Dr. Bergey recommended that Plaintiff undergo surgery for his right shoulder and a right carpal tunnel release. (AR 408, 431). While there may have been "some improvement," Plaintiff still suffered from considerable pain and significant impairments.

Thus, the ALJ's reliance on a finding of "some improvement" to reject Dr. Bergey's opinions reflects an overly selective reading of the record. This selective reading of the record fails to constitute substantial evidence to discredit Dr. Bergey's opinion. See Reddick, 157 F.3d at 723 (it is impermissible for the ALJ to develop an evidentiary basis by "not fully accounting for the context of materials or all parts of the testimony and reports"); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (an ALJ may not reach a conclusion and justify it by ignoring competent evidence in the record that would suggest an opposite result). Accordingly, the finding that Plaintiff had "some improvement" after surgery is not a legitimate reason to reject Dr. Bergey's opinion, as Plaintiff continued to suffer from serious and constant pain and limitations, as documented in the medical evidence.

B. The ALJ Erred In Rejecting Dr. Bergey's Opinion On The Grounds That Plaintiff Received Only "Conservative Treatment"

Second, the ALJ's characterization of Plaintiff receiving only "conservative treatment" after surgery was not a legitimate reason to reject Dr. Bergey's opinion. (AR 30-31). The record reflects that even after his surgery, Plaintiff saw Dr. Bergey quite regularly until April 2013. (AR 208-17, 222-29, 290-313, 405-09, 414-18, 424-43, 444-47). Dr. Bergey requested authorization for trigger point injections on several occasions. (AR 211, 292, 302, 312, 417). He also recommended physical therapy, radiofrequency ablation, and regularly prescribed various narcotic pain medications, including Dilaudid, Percocet, Nucynta, and Oxycodone. (AR 308, 301-02, 292, 308, 301-02, 406, 415, 425, 430, 435, 438, 441, 446). These prescribed medications are narcotic pain medications, as opposed to more conservative non-narcotic pain medication that could have been prescribed if Plaintiff's pain was not severe.

The Court notes that even if the characterization of Plaintiff's immediate post-surgical care as "conservative treatment" could be viewed as legitimate, the treatment itself was not effective in resolving Plaintiff's symptoms, and Dr. Bergey recommended more surgery. In his April 9, 2013 treatment note, Dr. Bergey expressly stated that the treatment for Plaintiff — including injections, physical therapy, medications, bracing, and a modified lifestyle — failed to address Plaintiff's severe shoulder pain and right carpal tunnel syndrome. (AR 408). Dr. Bergey therefore recommended that Plaintiff undergo additional surgery for both impairments. (AR 408, 431). Additional surgery is not "conservative treatment." Whether the initial treatment was or was not conservative, it did not successfully treat Plaintiff's pain and impairments. Thus, the ALJ's reliance on "conservative treatment" to reject Dr. Bergey's opinion was not a legitimate reason.

C. The ALJ Erred In Rejecting Dr. Bergey's Opinion On The Grounds That His Opinion Was Inconsistent With Plaintiff's Statements

Third, the ALJ rejected Dr. Bergey's opinion because Plaintiff "acknowledged he stopped taking pain medications in December 2011 and was able to perform household chores" and he "admitted lumbar surgery decreased his back pain." (AR 31). However, the Court disagrees with the characterization of Plaintiff's statements. The ALJ cites to Dr. Bergey's December 2011 report which noted:

(AR 308). Thus, when read in context, although Plaintiff attempted to stop taking his medication in December 2011, he was unsuccessful due to increased pain after performing household chores, and had to reinitiate taking his medication so that he could do his household chores. Moreover, the record is replete with evidence that subsequent to December 2011, Plaintiff continued to take narcotic pain medications. (AR 292, 301, 308, 406, 415, 425, 430, 435, 438, 441, 446). The record also reflects that Plaintiff continually complained of low back pain after the surgery. (AR 299, 307, 406, 415, 425, 434, 439, 445). Accordingly, the ALJ's selective reading of Plaintiff's statements does not constitute a specific and legitimate reason supported by substantial evidence for rejecting Dr. Bergey's opinion. See Reddick, 157 F.3d at 723; Gallant, 753 F.2d at 1456.

D. The ALJ Erred In Rejecting Dr. Bergey's Opinion On The Grounds That Dr. Bergey Examined Plaintiff "In The Context Of A Workers' Compensation Claim"

Finally, the ALJ did not give Dr. Bergey's opinion "regarding [Plaintiff's] functional limitations any weight" because, according to the ALJ, Dr. Bergey examined Plaintiff "solely in the context of a workers' compensation claim." (AR 31). As an initial matter, "the ALJ may not disregard a physician's medical opinion simply because it was initially elicited in a state workers' compensation proceeding, or because it is couched in the terminology used in such proceedings." Booth v. Barnhart, 181 F.Supp.2d 1099, 1105 (C.D. Cal. 2002).

Although "[t]he categories of work under the social security scheme are measured quite differently" than under the state workers' compensation scheme, Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 1988), an ALJ must give a medical opinion prepared for a workers' compensation case proper consideration. See Lester, 81 F.3d at 832 (the purpose for which medical reports are obtained alone is not a legitimate basis to reject such reports).

Although Dr. Bergey may have treated Plaintiff within a workers' compensation context, Dr. Bergey was also Plaintiff's treating physician for a number of years. A treating physician is defined as the claimant's own physician who has provided or continues to provide the claimant with medical treatment or evaluation in an ongoing treatment relationship. See 20 C.F.R. § 404.1502. A relationship between a physician and a patient is considered an ongoing relationship "when the medical evidence establishes that [the patient] see[s], or [has] seen, the source with a frequency consistent with accepted medical practice for the type of treatment and/or evaluation required for [the patient's] type of medical condition(s)." Id. As noted above, the evidence reflects that Dr. Bergey provided extensive medical treatment for Plaintiff's impairments on a continual and consistent basis for a period of almost three years. As the treating physician, Dr. Bergey's findings and treatment notes should have been given the greatest weight by the ALJ. Therefore, the fact that Dr. Bergey may have initiated his treatment of Plaintiff in the "context of a workers compensation claim" does not change the fact that Dr. Bergey ultimately became Plaintiff's treating physician.

Because the ALJ failed to provide specific and legitimate reasons for rejecting the treating physician's opinion, or, instead, to fully credit the opinion, the case must be remanded to remedy this defect. Upon remand, the ALJ must either provide specific and legitimate reasons to reject Dr. Bergey's opinion or incorporate the limitations provided by Dr. Bergey's opinion into the RFC determination.

VII.

CONCLUSION

Accordingly, IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties.