EDMUND F. BRENNAN, District Judge.
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her applications for Disability Income Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("Act"), respectively. For the reasons discussed below, the court grants plaintiff's motion for summary judgment, denies the Commissioner's cross-motion for summary judgment, and remands the case for further proceedings.
Plaintiff, Patricia Jackson, filed an application for disability benefits on May 18, 2007 and an application for supplemental security income on May 23, 2007, alleging that she had been disabled since July 1, 2006. Administrative Record ("AR") 15, 397, 433. Plaintiff's application was initially denied on September 28, 2007, and upon reconsideration on August 15, 2008. Id. at 15, 398. Plaintiff also applied for Disabled Widows benefits on December 19, 2008. Id. at 399-400. On July 1, 2009, a hearing was held before administrative law judge ("ALJ") Laura Speck Havens. Id. at 15, 429. Plaintiff, who was represented by attorney Roopen Parekh, testified at the hearing. Id. at 432-442.
On October 30, 2009, the ALJ issued a decision finding that plaintiff was not disabled under section 1614(a)(3)(A) of the Act.
a younger individual age 18-49, on the alleged disability date. The claimant subsequently changed age category to closely approaching advanced age.
Id. at 18-29.
Plaintiff requested that the Appeals Council review the ALJ's decision. Id. at 11. However, on July 9, 2010, the Appeals Council denied review, leaving the ALJ's decision as the "final decision of the Commissioner of Social Security." Id. at 6-10.
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).
Among other alleged errors, plaintiff contends that the ALJ failed to give proper reasons for the weight accorded the opinion of her treating physician, Dr. Skinner, while improperly relying upon the opinions of an examining physician and a non-examining state agency physicians. As discussed below, this contention is meritorious and the issue is dispositive and requires remand.
The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). 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 at 1273, 1285 (9th Cir. 1996).
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. 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).
In a physical residual functional capacity assessment dated April 1, 2009, plaintiff's treating physician, Dr. Skinner, opined that plaintiff is limited to lifting or carrying 20 pounds, could walk a total of two hours and sit for four hours in an 8-hour workday, and is limited in pushing and/or pulling in the upper and lower extremities. AR 383-388. In support of these limitations, Dr. Skinner noted plaintiff has "multiple chronic joint and muscles pains that can be worsened by heavy lifting or carrying or pushing heavy objects. Furthermore [plaintiff] has COPD and asthma which causes chronic shortness of breath with exertion." Id. at 384. Dr. Skinner also assessed plaintiff as unable to perform postural limitations due to neck, low back, knee and hand pain and numbness and manipulative limitations due to neuropathy and tendinitis of the thumb and chronic neck pain. Id. at 385-386. Further limitations were assessed with respect to the environment based on plaintiff's COPD/asthma. Id. at 387. Dr. Skinner concluded plaintiff would miss three days of work per month due to her impairments because of medical appointments, laboratories, and physical therapy. Id.
In contrast, examining physician Dr. Bai, who performed an orthopedic evaluation on August 25, 2007, opined that plaintiff is able to carry or lift 10 pounds occasionally and 10 pounds frequently; plaintiff is able to stand and walk six hours and sit for six hours in an eight-hour workday; plaintiff has postural limitations with occasional climbing, stooping, kneeling and crouching; due to right shoulder pain, plaintiff is limited to occasional overhead activity; due to failed back syndrome, plaintiff needs alternate sitting and stretching, and changing position; and plaintiff has no visual, communicative, or environmental limitations. AR 128-133.
The ALJ assigned "reduced weight" to the opinion of Dr. Skinner, while according "substantial weight" to Dr. Bai's opinion. The ALJ wrote:
Id. at 26. Regarding Dr. Bai's opinion, the ALJ wrote:
Id. at 23.
The ALJ erred in rejecting the opinion of plaintiff's treating physician in favor of an examining physician's opinion who did not review the entirety of plaintiff's medical records. The ALJ further erred in assigning significant weight to Dr. Bai's opinion because this physician was not provided plaintiff's available medical records. See 20 C.F.R. §§ 404.1517, 416.917 ("If we arrange for [a consultative] examination or test . . . [w]e will also give the examiner any necessary background information about your condition."); AR 128 (Dr. Bai provided only a copy of consultation report by Dr. Barzaga); AR 92-94 (Dr. Barzaga's report); AR 97-127, 318-321, 380-381 (medical records predating Dr. Bai's examination which were not provided to examining physician for review). Moreover, because Dr. Bai examined plaintiff in August, 2007, the later dated treatment notes of Dr. Skinner and other medical records which document plaintiff's shortness of breath with exertion and multiple chronic joint and muscle pains, were not available for consideration by Dr. Bai. See AR 188-317, 323-379, 409-428. Under these circumstances, Dr. Bai's opinion cannot constitute substantial evidence justifying rejection of the opinion of plaintiff's treating physician. See Ladue v. Chater, 1996 WL 83880, at *5 (N.D. Cal. 1996) (requiring remand where "[t]he ALJ failed to conform to 20 C.F.R. § 404.1517 requiring that the consultative examiner be provided with necessary background information regarding the claimant's condition [and] it appears from the record that the ALJ gave [the consultative examiner's] consultative report considerable weight, even though [the consultative examiner] was lacking important background information regarding plaintiff"); Pruitt v. Astrue, 2010 WL 1330164, at *4 (C.D. Cal., Mar. 31, 2010) (requiring remand where the ALJ relied on consultative psychologist's opinion who did not completely review plaintiff's medical records); Lauer v. Apfel, 245 F.3d 700, 705 (8th Cir. 2001) (holding that the reports of doctors who have examined a claimant once are not substantial evidence upon which to base a denial of disability, especially when contradicted by other medical evidence in the record).
Accordingly, Dr. Bai's opinion cannot be the basis for rejecting the opinion of the treating physician, whose opinion under these circumstances must be considered uncontradicted.
The ALJ rejected Dr. Skinner's opinion on the erroneous basis that the record did not support the doctor's assertion that plaintiff suffered from shortness of breath on exertion and that there was a "disconnect" between the treatment notes and Dr. Skinner's assessment. The records are replete with indications that plaintiff was experiencing increasing difficulty with shortness of breath and that the ALJ opinion mischaracterized the record in concluding that plaintiff symptoms were "reasonably controlled." AR 26; see AR 383 (primary diagnosis "COPD"); AR 384 (assessed exertional limitations predicated in part on "COPD and asthma which causes chronic shortness of breath with exertion"); AR 259 (May 2008, "significant shortness of breath with exertion"); AR 258 (echocardiogram performed on plaintiff due to shortness of breath); AR 271 (shortness of breath with exertion); AR 213, 215 (August 2008, plaintiff had urgent condition of wheezing); AR 243 (November 2008, shortness of breath with exertion); AR 236 (February 2009, shortness of breath with exertion; plaintiff admitted to hospital for heart catheterization); AR 76 (plaintiff reported in August 2008 on social security disability report that asthmatic condition had worsened). Thus, the ALJ failed to provide clear and convincing reasons for rejecting the opinion of plaintiff's treating physician.
The vocational expert testified that with the functional limitations assessed by Dr. Skinner, there would be no jobs available to plaintiff. AR 445-446. However, Dr. Skinner did not opine as to how long plaintiff had had the limitations assessed in the residual functional capacity. Because Dr. Skinner's assessment was based in part on plaintiff's chronic shortness of breath on exertion, and there is evidence that plaintiff's physical limitations may have increased during the relevant time period due to a deteriorating condition, it is appropriate to remand this matter for further evaluation of the medical evidence and to determine whether plaintiff had a later onset date of disability than the one alleged.
IV.
For the foregoing reasons, this matter will be remanded under sentence four of 42 U.S.C. § 405(g) for further findings addressing the deficiencies noted above.
Accordingly, 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. Bowen, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.
