Vivian Henriquez v. Michael J Astrue, No. 5:2009cv00776 - Document 15 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. (ib)
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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 VIVIAN HENRIQUEZ, 12 13 14 15 16 Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. ED CV 09-00776 (RZ) MEMORANDUM OPINION AND ORDER 17 Plaintiff makes four arguments in challenging the Commissioner s 18 determination that she is not disabled, the first of which is that the Commissioner did not 19 defer to the opinion of the treating physician. The law on this point, identified by the 20 Commissioner in his Memorandum to this Court, is familiar: the treating physician s 21 uncontroverted opinion must be respected unless the Administrative Law Judge gives clear 22 and convincing reasons, Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989), and the 23 treating physician s controverted opinion must be respected unless the Administrative Law 24 Judge gives specific and legitimate reasons supported by the record. Lester v. Chater, 81 25 F.3d 821, 830-31 (9th Cir. 1996). The opinion to which Plaintiff refers is a document 26 entitled Medical Opinion Re: Ability to Do Work-Related Activities (Physical), dated 27 September 4, 2007, in which the person filling out the form restricted Plaintiff to standing 28 and walking less than two hours in an eight hour day, sitting less than two hours in an eight 1 hour day, lifting and carrying less than ten pounds frequently, and other similar restrictions. 2 [AR 133-35] 3 The Administrative Law Judge said two things about this evaluation: that he 4 could not read the signature on the form, and that there is no objective support anywhere 5 in the record for such restrictions. [AR 12] The report itself, however states that 6 multiple lumbar disc herniations support the limitations [AR 134] and that noted 7 cervical, thoracic & lumbar myospasms are medical findings supporting certain physical 8 functions limitations. [AR 135] As Plaintiff notes in his memorandum to this Court, the 9 record contains evidence of these findings. [AR 120] The Court does not understand the 10 Commissioner s argument that such information is not medical source information. 11 The fact that the signature on the form is illegible should not be the end of the 12 matter. The Administrative Law Judge, after all, has the obligation to develop the record, 13 even where the applicant is represented by counsel, Mayes v. Massanari, 276 F.3d 453, 459 14 (9th Cir. 2001), citing Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) and 15 Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983), and it would seem a simple matter 16 to inquire of Plaintiff s counsel as to whose signature is on the form, and where the medical 17 records came from. In this Court, the Commissioner argues that it is not even clear that the 18 opinion is that of a treating physician, citing Matney on behalf of Matney v. Sullivan, 981 19 F.2d 1016, 1020 (9th Cir. 1992), but the cited case does not support rejection of the opinion 20 in this case; in Matney, the Ninth Circuit upheld the Commissioner s rejection of a medical 21 opinion that was based on a one-time visit and a brief report, and where the doctor had 22 agreed to be an advocate for the claimant. Id. No similar situation exists here. 23 The Administrative Law Judge should have taken the steps necessary to 24 ascertain if the report, in fact, was made by a treating physician, and if so, to accord it the 25 weight due opinions of treating physicians. This case seems to have been given a fairly 26 perfunctory review; not only is the record sparse, as the Commissioner notes in his 27 Memorandum to this Court, but also the hearing itself was extremely brief, lasting four 28 minutes. The transcription covers a mere three and a half pages, and the Administrative -2- 1 Law Judge asked only a single question. Only Plaintiff testified. Perhaps a more extended 2 development of the record would have clarified the issues identified here. 3 The decision is reversed, and the matter is remanded to the Commissioner for 4 further development of the record and exploration of the treating physician issue. This 5 disposition makes it unnecessary to assess the other arguments Plaintiff makes to this 6 Court. On remand, the Commissioner may wish to reconsider the matters addressed by 7 those arguments as well. 8 IT IS SO ORDERED. 9 10 DATED: November 12, 2009 11 12 13 14 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-
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