Unpublished Disposition, 841 F.2d 1128 (9th Cir. 1988)

MEMORANDUM^* 

Monica P. Ell appeals the district court's affirmance of the Secretary's denial of social security disability benefits. We reverse and remand to the district court with instructions to remand to the Secretary for specific findings with respect to Ell's treating physician's opinion.

FACTS AND PROCEEDINGS

Ell filed an application for disability benefits. At the hearing on her claim, Ell presented a letter from her treating physician, which stated that she cannot return to work. In denying Ell's claim, the ALJ relied on medical reports from consulting physicians and never discussed or mentioned the treating physician's opinion.

DISCUSSION

Ell argues that (1) the Secretary failed to give proper weight to the treating physician's opinion; and (2) there is no substantial evidence in the record which would indicate that she is able to work. We agree with Ell's first contention and do not reach the second.

Generally, conflicts in medical evidence are to be resolved by the Secretary. Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). However, whenever the conflict is between the treating physician and examining physician, the Secretary must set forth specific, legitimate reasons based on substantial evidence in the record for rejecting the treating physician's opinion. Winans v. Bowen, 820 F.2d 1519, 1523 (9th Cir. 1987). The rationale for this requirement is that the treating physician is employed to cure and has a greater opportunity to know and to observe the patient as an individual. Id.

Here, we find that the ALJ erred when he failed to make specific findings for rejection of the treating physician's opinion. Indeed, there is no evidence in the record that the ALJ even considered such opinion. The Secretary's reliance on Allen v. Heckler, 749 F.2d 577 (9th Cir. 1984), is misplaced. In Allen, the ALJ made specific findings before rejecting the treating physician's opinion.

REVERSED and REMANDED.