Ana M. Lugo v. Michael J. Astrue, No. 2:2009cv01446 - Document 17 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
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Ana M. Lugo v. Michael J. Astrue Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 ANA M. LUGO, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. CV 09-01446-MAN MEMORANDUM OPINION AND ORDER Plaintiff filed a Complaint on March 5, 2009, seeking review of the 18 denial by the 19 plaintiff s application for a period of disability and disability 20 insurance benefits ( DIB ). On March 27, 2009, the parties consented to 21 proceed before the undersigned United States Magistrate Judge pursuant 22 to 28 U.S.C. § 636(c). 23 September 28, 2009, in which: 24 Commissioner s decision and awarding benefits or, in the alternative, 25 remanding 26 defendant seeks an order affirming the Commissioner s decision. 27 Court has taken the parties Joint Stipulation under submission without 28 oral argument. the Social matter Security for Commissioner ( Commissioner ) of The parties filed a Joint Stipulation on plaintiff seeks an order reversing the further administrative proceedings; and The Dockets.Justia.com SUMMARY OF ADMINISTRATIVE PROCEEDINGS 1 2 3 On June 27, 2008, plaintiff filed an application for a period of 4 disability and DIB, alleging an inability to work since April 7, 2008, 5 due to fibromyalgia and depression. (Administrative Record ( A.R. ) 28- 6 30, 43.) 7 assembler. Plaintiff has past relevant work experience as an electronics (A.R. 35-37.) 8 The Commissioner denied plaintiff s application initially. 9 (A.R. 10 21-25.) On September 8, 2008, plaintiff filed a Request for Hearing 11 before an administrative law judge, but waived her right to appear and 12 testify at the hearing.1 13 a decision be made based on the evidence. 14 plaintiff filed a second Request for Hearing before an administrative 15 law judge.2 16 she wished to appear and testify at a hearing. 17 2008, 18 plaintiff s claims based on the evidence in the record (A.R. 10-15), and 19 the Appeals Council subsequently denied plaintiff s request for review 20 of the ALJ s decision (A.R. 1-3). (A.R. 18.) Administrative (A.R. 26.) Instead, plaintiff requested that (Id.) On October 8, 2008, In the second request, Plaintiff indicated that Law Judge James D. (Id.) Goodman On October 14, ( ALJ ) denied 21 22 23 24 1 26 Plaintiff signed the Request for Hearing on September 5, 2008, but notations by the Social Security Administration indicate that she did not file it until September 8, 2008. Although plaintiff retained counsel on September 2, 2008, counsel did not sign this request. (A.R. 19, 26.) 27 2 25 28 The second Request for Hearing is dated October 2, 2008, but was not received by the Social Security Administration until October 8, 2008. (A.R. 18.) 2 SUMMARY OF ADMINISTRATIVE DECISION 1 2 3 The ALJ found that plaintiff has not engaged in substantial gainful 4 activity since April 7, 2008, the alleged onset date of disability. 5 (A.R. 6 controlled, 7 combination, are severe impairments. (A.R. 12.) The impairments do not 8 meet or equal one of the listed impairments in 20 C.F.R. Part 404, 9 Appendix 1, Subpart P. 10 12.) The and ALJ determined non-insulin that dependent (A.R. 13.) plaintiff diabetes has hypertension, mellitus, which in The ALJ found that plaintiff does not have a severe mental impairment.3 (A.R. 12-13.) 11 12 In setting forth plaintiff s residual functional capacity ( RFC ), 13 the ALJ relied on the opinion of a non-examining State agency review 14 physician, who found that plaintiff has no physical limitations. 15 13-14.) 16 range of medium work as defined in 20 C.F.R. § 404.1567(c),4 and as a 17 result, she is capable of performing her past relevant work as an 18 electronics assembler. (A.R. The ALJ determined that plaintiff has the RFC to perform a full (A.R. 13.) 19 20 3 26 The ALJ found that plaintiff has a medically determinable impairment of a depressive disorder, [not otherwise specified], but that plaintiff s mental impairment was not severe. (A.R. 12-13.) The Court notes that the ALJ, in reaching this conclusion, made an incorrect statement of law. One reason the ALJ found plaintiff s depressive disorder to be not severe was because she has not shown that her psychiatric symptoms have lasted for [twelve] or more continuous months. (A.R. 12.) Disability, however, is defined as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . can be expected to last for a continuous period of not less than 12 months. 42 U.S. 423(d)(1)(A) (emphasis added). See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) 27 4 21 22 23 24 25 28 Medium work is defined as work that involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. 20 C.F.R. § 404.1567(c). 3 1 Accordingly, the ALJ concluded that plaintiff was not disabled, as 2 defined in the Social Security Act, from April 7, 2008, the alleged 3 onset date, through the date of the decision. (A.R. 14.) 4 5 STANDARD OF REVIEW 6 7 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 8 decision to determine whether it is free from legal error and supported 9 by substantial evidence in the record as a whole. Orn v. Astrue, 495 10 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is such relevant 11 evidence as a reasonable mind might accept as adequate to support a 12 conclusion. 13 a mere scintilla but not necessarily a preponderance. 14 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). 15 record can constitute substantial evidence, only those reasonably 16 drawn from the record will suffice. 17 1063, 1066 (9th Cir. 2006) (citation omitted). Id. (citation omitted). The evidence must be more than Connett v. While inferences from the Widmark v. Barnhart, 454 F.3d 18 19 Although this Court cannot substitute its discretion for that of 20 the Commissioner, the Court nonetheless must review the record as a 21 whole, weighing both the evidence that supports and the evidence that 22 detracts from the [Commissioner s] conclusion. 23 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 24 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 25 responsible for determining credibility, resolving conflicts in medical 26 testimony, and for resolving ambiguities. 27 1035, 1039 (9th Cir. 1995). 28 4 Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d The Court will uphold the Commissioner s decision when the evidence 1 2 is susceptible to more than one rational interpretation. Burch v. 3 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 4 review only the reasons stated by the ALJ in his decision and may not 5 affirm the ALJ on a ground upon which he did not rely. 6 at 630; see also Connett, 340 F.3d at 874. 7 the Commissioner s decision if it is based on harmless error, which 8 exists only when it is clear from the record that an ALJ s error was 9 inconsequential to the ultimate nondisability determination. Robbins 10 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 11 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 12 at 679. However, the Court may Orn, 495 F.3d The Court will not reverse 13 14 DISCUSSION 15 16 Plaintiff alleges the following four issues: (1) whether the ALJ 17 properly considered the opinion of physician s assistant Edgar James 18 Jackson; (2) whether the ALJ properly considered the type, dosage, and 19 side effects of plaintiff s medications; (3) whether the ALJ properly 20 considered the actual mental and physical demands of plaintiff s past 21 relevant work; and (4) whether the ALJ properly considered the lay 22 witness testimony. (Joint Stipulation ( Joint Stip. ) at 2-3.) 23 24 25 I. The ALJ Was Not Required To Discuss The Opinion Of Physician s Assistant Edgar James Jackson. 26 27 28 An ALJ is not required to discuss every piece of evidence in the record. See Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) 5 1 ( [I]n interpreting the evidence and developing the record, the ALJ does 2 not need to discuss every piece of evidence. )(citation omitted). The 3 Social Security Administration s regulations state that, [i]n addition 4 to evidence from the acceptable medical sources . . . we may also use 5 evidence from other sources to show the severity of your impairment(s) 6 and how it affects your ability to work. 7 ALJ does not commit legal error by failing to incorporate a two-word 8 diagnosis by a physician s assistant who has only examined plaintiff on 9 one occasion. 20 C.F.R. § 404.1513(d). An (A.R. 676-79.) 10 11 On September 12, 2008, plaintiff visited the urgent care center at 12 Kaiser Permanente ( Kaiser ). 13 Edgar James Jackson, examined plaintiff. 14 after visit summary that lists plaintiff s vitals and medications and 15 reflects a diagnosis of anxiety disorder. 16 visit summary contains no other relevant information, including a 17 description of what symptoms plaintiff was experiencing. 18 reflects that Mr. Jackson only examined plaintiff on this occasion and 19 does not indicate that a physician reviewed the summary. (A.R. 676.) A physician s assistant, (Id.) Mr. Jackson issued an (A.R. 676-79.) The after The record 20 21 Plaintiff contends that the ALJ erred in failing to discuss this 22 after visit summary and provide a legally sufficient reason for 23 dismissing it. 24 is not an acceptable medical source. 25 physician s assistant, and there is no evidence that he worked closely 26 with any of plaintiff s doctors such that he was acting as a doctor s 27 agent and could be considered an acceptable medical source. 28 v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996)(finding that a nurse (Joint Stip. at 3.) 6 As an initial matter, Mr. Jackson 20 C.F.R. § 404.1513(a). He is a See Gomez 1 practitioner who worked in conjunction with, and under the supervision 2 of, a physician could be considered an acceptable medical source). 3 Thus, the after visit summary is not a medical opinion that the ALJ was 4 required to discuss. 5 statements from physicians or psychologists or other acceptable medical 6 sources . . . . ). 7 other source, whose opinion the ALJ may, but is not required to, 8 consider. 20 C.F.R. § 404.1527(a)(2) ( Medical opinions are Instead, a physician s assistant constitutes an 20 C.F.R. § 404.1513(d)(1). 9 10 Here, the after visit summary reflects a mere two-word diagnosis by 11 a physician's assistant followed by what appears to be a cut and paste 12 summary of the standard treatment plan information Kaiser provides to 13 any patient diagnosed with anxiety disorder. 14 Jackson s diagnosis was unsupported by any notes or evidence, and the 15 summary failed to even list the reason for plaintiff s visit. 16 the after visit summary is not an opinion from an acceptable medical 17 source 18 limitations, and daily functioning.5 and provides no information as to (A.R. 676-79.) plaintiff s Mr. In sum, symptoms, 19 Accordingly, the ALJ was not required to discuss Mr. Jackson s 20 21 after visit summary, and did not err in failing to do so. 22 23 24 25 5 26 27 28 The Court further notes that plaintiff never alleged that she suffered from anxiety in her initial application or on appeal. (A.R. 43, 77.) Plaintiff alleged that she was unable to work due to her fibromyalgia and depression. (Id.) Indeed, plaintiff submitted hundreds of pages of her medical history, and none mention anxiety. (See A.R. 108-19, 136-603, 613-681.) 7 1 II. 2 There Is No Reversible Error With Respect To The ALJ's Consideration Of The Side Effects Of Plaintiff's Medications. 3 4 Pursuant to Social Security Ruling ( SSR ) 96-7p, an ALJ must 5 consider the type, dosage, effectiveness, and side effects of any 6 medication the individual takes or has taken to alleviate pain or other 7 symptoms. 8 effects that have a significant impact on an individual s ability to 9 work. Erickson v. Shalala, 9 F.3d 813, 817-18 (9th Cir. 1993)(citation However, an ALJ need only consider those medication side 10 omitted). 11 with 12 consideration. 13 2001)( There 14 claimant s] medication in some of the medical records, but there was no 15 evidence 16 claimant s] ability to work. ). a Side effects of medications not severe enough to interfere claimant s of ability to work are properly excluded from See Osenbrock v. Apfel, 240 F.3d 1157, 1164 (9th Cir. were side passing effects mentions severe of the enough to side effects interfere of with [the [the 17 18 Plaintiff contends that the ALJ failed to consider the type, 19 dosage, and side effects of plaintiff s medications properly. 20 Stip. at 6-7.) 21 the use of medications, and any side effects therefrom, had a negative 22 effect on her ability to work. 23 (9th Cir. 1985)(stating that a claimant bears the burden of proving that 24 her medication impairs her ability to work). (Joint Plaintiff, however, has not met her burden to show that See Miller v. Heckler, 770 F.2d 845, 849 25 26 The only evidence regarding plaintiff s alleged side effects are 27 from her own statements to the Social Security Administration in the 28 Disability Report Appeal. (A.R. 79-80.) 8 See Thomas v. Barnhart, 278 1 F.3d 947, 960 (9th Cir. 2002)(finding that the ALJ properly excluded 2 claimant s allegations of side effects, because [t]he only evidence 3 regarding [side effects were the claimant s] own statements to her 4 doctor and her testimony at the hearing ); see also Moore v. Astrue, 5 2009 WL 497503, *7 (C.D. Cal. Feb. 26, 2009)( References to side effects 6 made only to the social security administration are not alone evidence 7 that the side effects of the medications are severe enough to affect 8 [the claimant s] ability to work. ). 9 effects from plaintiff s medications are inadequate to establish a The passing references to side 10 disabling 11 plaintiff s purported side effects resulted in functional limitations 12 that were severe enough to interfere with her ability to work. 13 Osenbrock, 240 F.3d at 1164 (finding that side effects not severe enough 14 to impair ability to work are not relevant). condition, because there is no evidence to show that See 15 16 Further, plaintiff s statements in the Disability Report - Appeal 17 (A.R. 79-80) about side effects are contradicted by her prior statements 18 in the Disability Report - Adult (A.R. 43-49). Plaintiff alleges, among 19 other things, that she experiences the side effects of sleepiness and 20 dry mouth from her usage of Fluxetine, Meloxican, Metformin, and Prozac. 21 (A.R. 79-80.) 22 plaintiff stated that she experienced no side effects from these 23 medications. 24 some side effects from certain medications to her physicians, plaintiff 25 is no longer taking those medications. 26 197.) In a previously submitted Disability Report, however, (A.R. 47.) In addition, although plaintiff has reported (Compare A.R. 79-80 and 112, 27 28 Thus, plaintiff did not meet her burden of demonstrating that her 9 1 use of medications impaired her ability to work. Accordingly, the ALJ 2 did not err in his consideration of the side effects of plaintiff s 3 medication. 4 5 III. The ALJ Failed To Properly Consider The Opinion Of Anna Lugo. 6 7 In evaluating the credibility of a claimant s assertions of 8 functional limitations, the ALJ must consider lay witnesses reported 9 observations of the claimant. Stout, 454 F.3d at 1053. [F]riends and 10 family members in a position to observe a claimant s symptoms and daily 11 activities are competent to testify as to [the claimant s] condition. 12 Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993); 20 C.F.R. § 13 404.1513(d)(4) ( [W]e may also use evidence from other sources to show 14 the severity of your impairment(s). . . . 15 are not limited to . . . spouses, parents and other care-givers, 16 siblings, other relatives, friends, neighbors, and clergy. ). 17 ALJ disregards the testimony of a lay witness, the ALJ must provide 18 reasons that are germane to each witness. 19 1113, 1115 (9th Cir. 2009)(citation omitted). 20 germane to each witness must be specific. 21 (explaining that the ALJ, not the district court, is required to 22 provide specific reasons for rejecting lay testimony ). Other sources include, but If an Bruce v. Astrue, 557 F.3d Further, the reasons Stout, 454 F.3d at 1053-54 23 24 An ALJ may properly discount lay testimony that conflict[s] with 25 the available medical evidence, Vincent v. Heckler, 739 F.2d 1393, 1395 26 (9th Cir. 1984), particularly, when, as in Vincent, lay witnesses [are] 27 making medical diagnoses, because [s]uch medical diagnoses are beyond 28 the competence of lay witnesses and 10 therefore do not constitute 1 competent evidence. 2 1996)(original emphasis). 3 testifies about a claimant s symptoms, such testimony is competent 4 evidence and cannot be disregarded without comment. 5 ALJ s 6 testimony favorable to the claimant, a reviewing court cannot consider 7 the error harmless unless it can confidently conclude that no reasonable 8 ALJ, when fully crediting the testimony, could have reached a different 9 disability determination. error lies in Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. a When, as here, however, a lay witness failure to properly Id. discuss [W]here the competent lay Stout, 454 F.3d at 1056. 10 Plaintiff contends that the ALJ improperly ignored the lay witness 11 12 statements of her daughter, Anna Jessica Lugo. 13 In a Function Report - Adult Third Party Questionnaire dated July 15, 14 2008 (the Questionnaire ), Ms. Lugo provided observations regarding 15 plaintiff s alleged impairments and their impact on plaintiff s daily 16 activities and ability to work. 17 visits plaintiff four to five times a week for two to three hours each 18 time. 19 alleged disability, plaintiff used to be very active and lively, cook 20 daily, and perform household chores. 21 stated that plaintiff is now limited in her ability to: 22 household chores; cook; handle money; perform physical activities, such 23 as lifting, walking, and sitting; concentrate; and follow instructions. 24 (A.R. 58-61.) In addition, plaintiff s pain will wake her up throughout 25 the night and makes it uncomfortable to be out or travel. 26 61.) 27 she used to be, and her condition has made her very emotional. 28 60, 62.) (A.R. 56.) (A.R. 56-63.) (Joint Stip. at 11-12.) Ms. Lugo stated that she Ms. Lugo further stated that, prior to plaintiff s (A.R. 57, 58, 60.) Ms. Lugo also perform (A.R. 57, Ms. Lugo explained that plaintiff is no longer the happy person 11 (A.R. 1 The Questionnaire corroborates the symptoms alleged by plaintiff 2 allegations and mentioned in her medical history. Yet, the ALJ fails to 3 even mention the Questionnaire in the decision, much less provide 4 germane reasons for rejecting Anna Lugo s observations of her mother s 5 impairments. 6 Specifically, the ALJ should have addressed Ms. Lugo s observations 7 regarding plaintiff s daily activities, memory lapses, difficultly 8 concentrating, and difficulty following instructions (A.R. 58-61), 9 because such observations are neither medical diagnoses nor do they 10 conflict with medical evidence, as defendant contends (Joint Stip. at 11 13). 12 reject lay testimony concerning claimant s symptoms); Dodrill, 12 F.3d 13 at 918-19 (remanding, in part, because the ALJ failed to provide germane 14 reasons for rejecting lay testimony concerning claimant s fatigue and 15 inability to perform household chores). The ALJ s failure to do so constitutes error. See Nguyen, 100 F.3d at 1467 (finding it was error for the ALJ to 16 17 Further, contrary to defendant s assertion, the ALJ s failure to 18 discuss Ms. Lugo s testimony is not harmless error. 19 confidently conclude that if Ms. Lugo s observations are fully credited, 20 no reasonable ALJ . . . could have reached different determination. 21 Stout, 454 F.3d at 1056. 22 the observation of Ms. Lugo for proper reasons, such failure by itself 23 or in combination with the ALJ s improper rejection of the opinions of 24 plaintiff s treating physicians6 may require the ALJ to reach a different 25 conclusion as to which impairments are severe, to reassess plaintiff s The Court cannot In particular, if the ALJ failed to reject 26 27 28 6 As discussed infra, the ALJ failed to properly discuss the opinion of plaintiff s treating physicians and provide specific and legitimate reasons for rejecting them. 12 1 RFC, and to reach a different disability determination. 2 3 On remand, the ALJ must provide germane reasons, if they exist, for 4 rejecting Ms. Lugo s statements regarding her observations of the nature 5 and extent of plaintiff s alleged impairments and limitations, so that 6 a reviewing court may know the basis for the ALJ s decision and have the 7 ability to assess the propriety of that decision. 8 9 IV. The Resolution Of The Outstanding Issues May Require A New 10 Determination Regarding Plaintiff s Ability To Perform Her Past 11 Relevant Work. 12 13 At step four of the disability evaluation process, claimants have 14 the burden of showing that they can no longer perform their past 15 relevant work. 16 Although the burden is on the claimant, SSR 82-62 requires that the ALJ 17 make findings of facts as to the claimant s RFC, the physical and mental 18 demands of the past relevant work, and whether the claimant can return 19 to her past relevant work. Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). 20 21 Plaintiff contends that the ALJ erred by failing to discuss the 22 actual mental demands of plaintiff s past relevant work.7 23 at 9.) 24 relevant work as an electronics assembler and found that, based on (Joint Stip. The ALJ discussed the physical demands of plaintiff s past 25 7 26 27 28 Although Plaintiff argues in one sentence that the ALJ failed to discuss the physical demands of her past relevant work, this appears to be an inadvertent argument as plaintiff only makes this argument once and it is directly contradicted by plaintiff s inclusion of the ALJ s discussion of the physical demands of plaintiff s past relevant work. (Joint Stip. at 9.) 13 1 plaintiff s own description of her past relevant work and his RFC 2 assessment, she was capable of performing such work. 3 Because the ALJ concluded that plaintiff did not have a severe mental 4 impairment, the Court is inclined to find plaintiff s contention without 5 merit. 6 consider the testimony of lay witness Anna Lugo and discuss the treating 7 physicians opinions, see infra, the ALJ s RFC determination may change 8 on remand. 9 propriety of the ALJ s determination at this time. (A.R. 14.) However, in light of the Court s conclusion that the ALJ must As such, the Court cannot undertake an analysis as to the 10 11 V. Remand Is Required. 12 13 The decision whether to remand for further proceedings or order an 14 immediate award of benefits is within the district court s discretion. 15 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 16 useful purpose would be served by further administrative proceedings, or 17 where the record has been fully developed, it is appropriate to exercise 18 this discretion to direct an immediate award of benefits. 19 ( [T]he decision of whether to remand for further proceedings turns upon 20 the likely utility of such proceedings. ). 21 outstanding issues that must be resolved before a determination of 22 disability can be made, and it is not clear from the record that the ALJ 23 would be required to find the claimant disabled if all the evidence were 24 properly evaluated, remand is appropriate. Where no Id. at 1179 However, where there are Id. at 1179-81. 25 26 Although plaintiff failed to raise these issues, the Court notes 27 that the ALJ completely failed to discuss plaintiff s fibromyalgia and 28 improperly rejected the opinions of her treating physicians. 14 Despite 1 the fact that plaintiff 2 application and her medical records are replete with references to it, 3 the ALJ failed to even mention fibromyalgia once in the decision. 4 Rather, the ALJ stated that plaintiff alleged shoulder and neck 5 problems and arthritis of the knees in her application, and made one 6 passing reference to pain in [plaintiff s] muscles and joints at step 7 four. 8 fibromyalgia allegations in his step two determination. (A.R. 10, 13.) listed fibromyalgia as a basis for her In fact, the ALJ completely ignored plaintiff s (A.R. 12-13.) 9 10 In failing to discuss plaintiff s fibromyalgia allegation, the ALJ 11 also 12 physicians. 13 substantial weight. 14 1988). 15 may only reject it for clear and convincing reasons. 16 Chater, 81 F.3d 821, 830 (9th Cir. 1996). 17 physician s opinions are contradicted, if the ALJ wishes to disregard 18 the opinion[s] of the treating physician he . . . must make findings 19 setting forth specific, legitimate reasons for doing so that are based 20 on substantial evidence in the record. Winans v. Bowen, 853 F.2d 643, 21 647 (9th Cir. 1987) (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th 22 Cir. 1983); see also McAllister v. Sullivan, 888 F.2d 599 602 (9th Cir. 23 1989)( broad and vague reasons for rejecting the treating physician s 24 opinion do not suffice). 25 a detailed and thorough summary of the facts and conflicting clinical 26 evidence, stating his interpretation thereof, and making findings. 27 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). improperly A rejected treating the opinions physician s of plaintiff s conclusions must treating be given Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. Where a treating physician s opinion is uncontradicted, the ALJ Lester v. Even when the treating The ALJ can meet this burden by setting out 28 15 Here, 1 three treating physicians diagnosed plaintiff (See, e.g., A.R. 196-99, 203-04, 206.) with 2 fibromyalgia. 3 without 4 stating that they reported very little in objective findings, and 5 primarily, reported only a list of [plaintiff s] numerous complaints. 6 (A.R. 13.) 7 review physician s assessment, which, by itself, is not substantial 8 evidence. 9 physician cannot 10 justifies the 11 physician. )(emphasis in original). 12 rejecting the treating physicians opinions, the ALJ mischaracterized 13 the record as to plaintiff s treatment records. 14 Comm r, 15 inaccurate characterization of evidence was error). 16 that plaintiff s treatment notes cover the period of June 12, 2008 17 through August 29, 2008 and that [n]one of the attending physicians at 18 Kaiser Permanente gives any opinions regarding the claimant s physical 19 limitations, if any. 20 that plaintiff s medical records, which number in the hundreds of pages, 21 include treatment notes from as early as November 1989. 22 Moreover, plaintiff s primary care physician, Dr. Katherine Lehman, 23 provided a letter dated August 29, 2008, and opined that plaintiff is 24 being 25 plaintiff s physical limitations8. discussion, summarily dismissed their notes Yet, the ALJ, and opinions, Instead, the ALJ appeared to rely solely on a State agency Lester, 81 F.3d at 831 ( The opinion of a nonexamining 166 by rejection F.3d treated itself for 1294, of constitute either 1297-98 examining evidence or (A.R. 13-14; 604-05.) (9th (A.R. 13-14.) fibromyalgia an substantial Cir. a that treating Further, in See Regennitter v. 1999)(finding that the The ALJ stated In actuality, the record reflects and depression, (A.R. 459.) before stating (A.R. 613.) On remand, the ALJ must 26 27 28 8 Specifically, Dr. Lehman opined that plaintiff could likely do sedentary work up to four hours per day, sitting no more than one hour at a time, up to four hours per shift, standing no more than [ten] 16 1 provide specific and legitimate reasons, if any, for rejecting the 2 treating physicians opinions. 3 require the ALJ to reassess plaintiff s impairments and RFC, and to 4 reach a different conclusion as to plaintiff s ability to perform her 5 past relevant work. If no proper reasons exist, this may 6 7 Remand is the appropriate remedy to allow the ALJ the opportunity 8 to correct the above-mentioned deficiencies and errors. See, e.g., 9 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for 10 further proceedings is appropriate if enhancement of the record would be 11 useful); McAllister, 888 F.2d at 603 (remand appropriate to remedy 12 defects in the record). 13 ALJ may consider the severity of plaintiff s fibromyalgia and its impact 14 on her RFC, if any. 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// Specifically, remand is necessary so that the 24 25 26 27 28 minutes at a time, no more than [four] times per shift. [Plaintiff] could carry no more than [ten] pounds, up to [ten] minutes a time, no more than [four] times per shift. She cannot do any stooping, kneeling, twisting, climbing, or operating machinery. She cannot lift above shoulder level. She cannot push or pull. (A.R. 613.) In addition, Dr. Lehman stated that plaintiff has memory and concentration impairments and expressed suicidal ideation. (Id.) 17 1 CONCLUSION 2 3 Accordingly, for the reasons stated above, IT IS ORDERED that the 4 decision of the Commissioner is REVERSED, and this case is REMANDED for 5 further proceedings consistent with this Memorandum Opinion and Order. 6 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of 7 this Memorandum Opinion and Order and the Judgment on counsel for 8 plaintiff and for defendant. 9 10 LET JUDGMENT BE ENTERED ACCORDINGLY. 11 12 13 DATED: August 18, 2010 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18
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