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United States District Court, N.D. California

March 30, 2004.

JO ANNE B. BARNHART, Commissioner of Social Security, Defendant

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

Plaintiff Robert E. Anderson ("Andersen") brings the above-entitled action pursuant to 42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits ("disability benefits") under the Social Security Act. Before the Court are the parties' cross-motions for summary judgment. Pursuant to the Civil Local Rules of this Court, the motions have been submitted on the papers without oral argument. See Civ. L.R. 16-5. Having considered the papers submitted in support of and in opposition to the motions, the Court rules as follows.


  Anderson was born on October 11, 1946. (See Certified Transcript of Administrative Record ("Tr") at 27, 38.) He received an A.A. degree in criminology from Page 2 Canada College in Redwood City in May 1975. (See id. at 39, 126.) Prior to May 19, 1997, he worked for the City and County of San Francisco. as a bus driver for seventeen years, and prior to that, as a custodian for fourteen years. (See Tr. at 121, 413.) Due to chronic back pain, Anderson became unable to work as of May 19, 1997. (See id. at 114.) In January 1999, Anderson was referred to a vocational rehabilitation program, and attempted to obtain a certificate in customer service. (See id. at 411, 405.) Anderson did not complete the requirements for that certificate. (See id. at 401.)

  On June 4, 1999, Anderson applied for disability benefits, claiming disability due to a herniated disc in the lower back and severe back pain, which he contended prevented him from working as a bus driver. (See id. at 114, 120.) The Social Security Administration denied Anderson disability benefits on August 23, 1999. (See id. at 91.) Anderson requested review of that denial on September 23, 1999, and his application was again denied on October 28, 1999. (See id. at 95, 96.) Anderson filed a request for a hearing by an Administrative Law Judge ("ALJ") on November 2, 1999, and a hearing was held on May 25, 2000. (See id. at 101, 33.)

  The ALJ heard testimony from two witnesses: Anderson and John Velton, a vocational expert ("VE"). (See id. at 38, 51.) On June 30, 2000, the ALJ issued his decision and found Anderson not disabled based on the five-step sequential evaluation process of the Social Security Regulations. See 20 C.F.R. § 404.1520.*fn1 The ALJ found Page 3 Anderson (1) was not performing substantially gainful activity, (2) has a medically determinable severe impairment, and (3) did not have a listed impairment because he did not show "the motor weakness" required for lumbar disc disease as stated in the regulations. (See id. at 31.) Before proceeding to steps four and five, the ALJ found Anderson to have the Residual Functional Capacity ("RFC") to do light exertional work, to lift at most twenty pounds, ten pounds frequently, and to stand one to two hours at a time and for a total of six of eight hours in a day. (See id. at 28, 31.) At step four, the ALJ determined that Anderson could not perform his past relevant work as a bus driver given his RFC. (See id. at 29, 31.). The ALJ, at step five, found Anderson not disabled because of the significant number of jobs available to a person with Anderson's RFC, education, age and training. (See id. at 29-30, 31.) In particular, the ALJ concluded that Anderson could perform work in assembly, and as a parking lot attendant, cashier II, or receptionist. (See. id. at 30.)

  Following the ALJ's unfavorable decision, Anderson filed a request for review by the Appeal Council, which was denied on June 7, 2001. (See id. at 4.) Thereafter, Anderson filed this action for judicial review pursuant to 42 U.S.C. § 405(g).


  The district court may set aside the Commissioner's denial of disability benefits "if it is not supported by substantial evidence or it is based on legal error." Green v. Heckler, 803 F.2d 528, 529 (9th Cir. 1986) (citation omitted). Substantial evidence is "more than a mere scintilla, but less than a preponderance." See Desrosiers v Secretary of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (citations and internal quotations omitted). "Substantial evidence" is "`such relevant evidence which a reasonable person might accept as adequate to support a conclusion.'" See id. (quoting Richardson v. Perales, 402 U.S. 389, 402 (1971)). In reviewing the ALJ's decision, the Court must "consider the record as a whole weighing both the evidence that supports and the evidence that detracts from the Secretary's conclusion." See id. at 576. The Court may not affirm the ALJ's decision "simply by isolating a specific quantum of supporting evidence." See Page 4 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The Court must "uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation." See Magallanes v. Brown, 881 F.2d 747, 750 (9th Cir. 1989).


  Anderson argues in his motion for summary judgment that the ALJ erred by: (1) rejecting the assessment of Dr. Linda H. Morse ("Dr. Morse"), Anderson's treating physician, without providing specific reasons based on substantial evidence in the record; (2) failing to make specific findings supporting his conclusion that Anderson's complaints of "excess symptoms" were not credible; and (3) relying upon consultative medical opinions that did not contain substantial evidence to support the denial of benefits.

  A. The ALJ Improperly Rejected the Treating Physician's Assessment

  1. Legal Standard

  "Because treating physicians are employed to cure and thus have a greater opportunity to know and observe the patient as an individual, their opinions are given greater weight than the opinions of other physicians." Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996) (citations omitted). Where the treating physician's opinion contradicts the opinion of an examining or consulting physician, the Commissioner must provide "`specific and legitimate reasons' supported by substantial evidence in the record" for rejecting the treating physician's opinion. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)); see also 20 C.F.R. § 404.1527(d)(2) (requiring that Social Security Administration always "give good reasons in [the] notice of determination or decision for the weight [given to the] treating source's opinion"). "`The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.'" Magallanes v. Bowen, 881 F.2d at 751 (quoting Cotton v. Bowen. 799 F.2d 1403, 1408 (9th Cir. 1986)); see, also Social Security Ruling ("SSR") 96-2p ["T]he notice of the determination or decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must Page 5 be sufficiently specific to make dear to any subsequent reviewers the weight the adjudicator gave to the treating source's opinion and the reasons for that weight.")

  2. Anderson's Medical History

  The record reflects that Anderson's history of back pain began in May 1994, when he first experienced pain in his right leg while driving a bus. (See Tr. at 367.) He complained of persistent pain in his right thigh. (See id. at 255-60.) A June 1, 1994 MR! showed disc dessication at L3-L4 and, to a lesser extent, at L4-L5, as well as a central disc extrusion at L3-L4 and a small right lateral protrusion at L4-L5 with possible contact with the exiting right L4 root (See id. at 249.) An October 1994 MRI revealed a herniated disc at the L3-L4 level with an extruded fragment. (See id. at 231.) There appeared to be an impingement of the right L4 nerve root, and a right lateral disc bulge at the L4-L5 level. See id. In December 1994, Anderson had a right L3-4 discectomy, and by January 11, 1995 experienced a fifty to sixty percent improvement in his leg pain. (See id. at 222.) Although Anderson complained of constant lower back pain radiating down his right leg, he returned to work full time in April 1995. (See id. at 205.)

  a. Treatment by Dr. Morse

  On May 19, 1997, Anderson experienced a flareup of pain in his right thigh, and was referred to Dr. Morse at Kaiser Permanente Medical Center in San Francisco. ("Kaiser"). (See id. at 345.) On May 29, 1997, Dr. Morse diagnosed Anderson with "acute L-S disc injury with severe pain" and "L4 radiculopathy," and recommended that Anderson remain away from work for a month. (See id. at 292 & 288-89.) On June 25, 1997, Dr. Morse noted that Anderson was "improving slowly but [was] not even ready for [moderate] duty"; ordered Anderson off work for another month; and diagnosed him with "acute L-5 disc injury with severe pain. (See id. at 287) (emphasis in original)). Anderson never returned to work.

  In her next report, on July 30, 1997, Dr. Morse indicated that surgery was not needed and that Anderson's disc injury was improving. (See id. at 285). Anderson was working out on a treadmill and doing leg exercises, but needed to use a cane for stability. Page 6 (See id. at 285.) Dr. Morse noted, however, that Andersen "will need time for recovery." (See id..) She continued his physical therapy and ordered him off work for another month. (See id.)

  On September 4, 1997, Anderson complained to Dr. Morse of constant pain in his low back and right thigh. (See id. at 284.) Dr. Morse measured Anderson's right thigh at two centimeters smaller than his left thigh, and noted that his left reflex was "2" while his right reflex was only a "trace." See id. Again, Anderson was ordered off work for another month. See id.

  On September 25, 1997, Dr. Morse noted that Anderson's lumbo-sacral disc injury had "plateaued without significant resolution" and referred him for another MRI. (See id. at 341.) On October 22, 1997, Dr. Morse indicated that Anderson's MRI showed a "mild central canal narrowing at L3-4 and mild flattening of thecal sac and bulging disc at this level especially right neural foramen." (See id. at 339; see also MRI report at 190-92.) Dr. Morse felt there was "no urgent need for surgery," but noted that the "MRI findings of right L3-4 level do match patient's symptoms." (See id. at 339.)

  On November 17, 1997, Dr. Morse was of the opinion that Anderson should continue to remain off work, and recommended that he be sent to a neurosurgeon for evaluation. (See id. at 338.) On February 4, 1998, Anderson saw a neurosurgeon, who found Anderson's MRI to be "unremarkable" and did not recommend further surgery. (See id. at 177.) On April 13, 1998, Dr. Morse referred Anderson for a second surgical opinion, and recommended that he continue to remain off work. (See id. at 181.) On June 12, 1998, Anderson obtained a second surgical opinion, which also found that surgery was not advisable. (See id. at 174.)

  In a "Permanent and Stationary Report," dated July 24, 1998, Dr. Morse noted that Anderson had throbbing low back and right leg pain present all day. (See id. at 331.) She noted that his gait was "a[n]talgic," i.e. tending to alleviate pain; there was atrophy of his right thigh and calf; he had decreased reflexes in his right knee and had 20% decreased strength in his right quadriceps compared to his uninjured leg. (See id. at 331-34.) Dr. Page 7 Morse declared Anderson to be a Qualified Injured Worker ("QIW") for purposes of workers' compensation, precluded Anderson from driving commercial vehicles and imposed other work restrictions requiring Anderson to "be able to sit/stand at will" and not lift over 30 Ibs. (See id. at 334.)

  In September 1998, Dr. Morse found that Anderson was permanently "incapacitated for performance of duty."(See id. at 273.) She also noted: "He is technically QIW & eligible for Voc Rehab but is very uncomfortable, & I doubt he is medically able." (See id.) She also found:

He requires use of a cane, has objective deficits, and is permanently precluded for work as a commercial driver, which he did for 18 years. He also cannot work (for same reasons) as a custodian, which he did for prior 16
(See id.)

  b. Evaluation by Dr. Trauner

  In January 1999, Anderson was evaluated by Dr. Donald L. Trauner ("Dr. Trauner") to determine whether Anderson was disabled for purposes of the City retirement plan. (See id. at 367.) Dr. Trauner noted that Anderson complained of severe constant pain in his low back (9 on a scale of 1 to 10), which radiated down his right leg. (See id. at 370.) He had numbness and weakness in his right leg. (See id.) Anderson told Dr. Trauner that sitting was his most uncomfortable position, and that he could sit for about 45 minutes. (See id.) Anderson also told him that he could not walk more than 200 yards, and that he had to use a cane because of his leg pain. (See id.)

  Dr. Trauner noted that "[straight] leg raising was 70 degrees bilaterally in the sitting position without pain [and] [i]n the recumbent position straight leg raising was 40 degrees on the right with anterior thigh pain and 70 degrees on the left." (See id. at 371.) He found there was "[o]ne-inch atrophy of the right thigh and half-inch atrophy of the right calf," and an "[a]bsent right knee reflex." (See id. at 373.) He also noted "[l]imited motion of the lumbar spine," which he felt "may be due to voluntary inhibition." (See id.) He also found that Anderson suffered from degenerative joint disease in his right hip, which could lead to Page 8 need for a total hip replacement. (See id. at 373-74.) Dr. Trauner concluded, based primarily on Anderson's hip problems, that "at this time he could not return to work as a bus driver, but he could carry out work that does not require sitting or standing for long periods of time and does not require repeated bending or heavy lifting activities." id. at 374. He found that Anderson's back symptoms "are constant and slight" and limited him "to light work." (See id. at 373.) Dr. Trauner recommended that Anderson's future treatment for his back "should consist of non-narcotic medicine [or] pain exercises." (See id. at 374.)

  c. Evaluation by Dr. Kimelman

  On July 21, 1999, Anderson was seen by Dr. Alan Kimelman for an "Ortho 90630 Consultative Disability Evaluation." (See id. at 375.) Dr. Kimelman found Anderson's lumbar flexion, extension, and rotation were all roughly 50% of normal, that he had reduced sensation to touch in the L4 nerve distribution in his right leg, and that he had diminished reflex in his right quadriceps. (See id. at 378.381.) He also found that Anderson had difficulties on his right side in balancing, hopping, climbing on a step stool, and mounting a table, and pain on both sides when squatting. (See id. at 376.) Dr. Kimelman stated that "[b]ack findings show reduced and painful lumbar spine range of motion, mildly reduced right knee deep tendon reflex, mild pain-inhibited weakness in the legs, guarding and muscle spasm in the back, and avoidance of positional weight-bearing changes for fear of pain." (See id. at 382.) He noted no difference between leg raising in the supine and sitting positions. (See id. at 378, 382.) He did not note any atrophy in Anderson's right leg, but also did not note a lack thereof. Dr. Kimelman concluded that Anderson could sit and stand for "[u]p to 2 hours at a time for 6 out of 8 in a day" and that Anderson could rarely walk without an assistive device. (See id., at 383.)

  d. Evaluation by Dr. Mandell

  On December 17, 1999, Anderson was evaluated by Dr. Peter J. Mandell ("Dr. Mandell"). (See id., at 415.) Dr. Mandell noted that Anderson complained of constant lower back pain all the way across the lower back and radiating down the front of the right thigh, and also radiating into the right buttock area. (See id. at 416.) Anderson told Dr. Mandell Page 9 that he was unable to sit for more than 30 to 45 minutes without getting up and moving around, and could not stand for more than 15 or 20 minutes without sitting down. (See id.) Anderson avoided stooping because of the pain, and did not lift anything heavier than ten pounds. (See id.) Anderson told him that he used a cane all the time because his right leg is weak and the cane protects him from falling. (See id.) "Much of the time he just lies in bed and sleeps." (id.)

  Dr. Mandell found that Anderson's lumbar spinal motion was ten to thirty percent of normal. (See id. at 417.) "Straight-leg raising is 70/70 degrees bilaterally in the seated position and 15/30 degrees (Right/Left) in the recumbent position." (See id. at 417.) He noted that Anderson's right thigh and calf were 5/8 to 7/8 of an inch smaller than his left thigh and calf. (See id. at 418.) Dr. Mandel also found that Anderson's reflexes were absent on the left and "1" on the right. (See id) He found diminished sensation to pinpoint in the right lower extremity. (See id.)

  Dr. Mandell concluded that "[i]f Mr. Anderson's history is correct, there is a disability as a result of his industrial injury, which is permanent, stationary, and ratable." (See id. at 419.) He diagnosed Anderson with "chronic lumber degenerative disc disease with right lower extremity radiculopathy." (See id. (emphasis in original).) He characterized Anderson's "subjective complaints as constant and moderate pain," and recommended that he be limited to light work." (See id.) Finally, Dr. Mandel stated:

If one were to view Mr. Anderson superficially, one would get the impression that his disability is greater than that listed above. There were nonorganic findings, which lead me to believe that the above-noted work preclusion is correct.
(See id. at 420.)

  3. The ALJ's Evaluation of the Treating Physician's Assessment

  Anderson argues that the ALJ did not provide any "reasons, specific or otherwise" for rejecting Dr. Morse's assessment of Anderson's condition.*fn2 Given the ALJ's findings in Page 10 favor of Anderson at steps one through four, the issue for the ALJ at step five was whether Anderson could perform any other work. (See id.) In Dr. Morse's July 24, 1998 "Permanent and Stationary Report," she stated that Anderson's work restrictions were that he (1) could not drive commercial vehicles, (2) must be able to sit and stand at will, and (3) could not lift more than 30 pounds. (See id. at 334.) The ALJ did not dispute the first and third of these conclusions. (See id. at 28-29.)*fn3 Although he generally discussed the second issue in the course of determining that Anderson could perform light work, he never acknowledged the restriction imposed by Dr. Morse. (See id.)

  The regulations define "light work" to involve "frequent lifting or carrying of objects weighing up to 10 pounds" and "a good deal of walking and standing." See 20 C.F.R. § 404.1567(b). "Since frequent lifting or carrying requires being on one's feet up to two-thirds of a workday, the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday." See SSR 83-10. "Sitting may occur intermittently during the remaining time." See id. In light of these definitions, the ALJ stated that, in the instant case, "[t]he issue is whether the claimant can perform light work activity on his feet for six out of eight hours or whether he would have to alternate sitting and standing and could not stand more than 30 minutes at a time and less than 6 out of 8 hours in a day." (See Tr. at 28.) The ALJ recognized that "if the claimant had to alternately sit and stand, especially if he could not sit and stand for more than 30 minutes at a time, that this would be more in the nature of sedentary than light work and that disability should be found." (See id. at 29.)

  Dr. Morse did not specifically opine as to whether Anderson could remain on his feet for six out of eight hours a day, or as to whether he could sit and stand for more than 30 minutes at a time. She did, however, expressly restrict Anderson to work in which he was Page 11 able to sit and stand "at will." (See id. at 334.) The ALJ failed to mention this conclusion, which differs from Dr. Trauner's conclusion that Anderson "could carry out work that does not require sitting or standing for long periods of time" (see Tr. at 374), and Dr. Kimelman's conclusion that Anderson was capable of sitting and standing for "[u]p to 2 hours at a time for 6 out of 8 in a day" (See id. at 383). The Commissioner recognizes that a person who is required to alternate sitting and standing essentially at will "is not functionally capable of doing either the prolonged sitting contemplated in the definition of sedentary work (and for the relatively few light jobs which are performed primarily in a seated position) or the prolonged standing or walking contemplated for most light work." See SSR 83-12.

  The ALJ ultimately concluded that Anderson could stand one to two hours at a time and for six to eight hours in a day, without mentioning Dr. Morse's conclusion that Anderson must be permitted to sit and stand at will. The ALJ is not permitted to reject a treating physician's opinion without providing specific and legitimate reasons supported by substantial evidence in the record. See Lester. 81 F.3d at 830. As the ALJ did not discuss Dr. Morse's conclusion on this issue at all, the ALJ has not met this standard. See e.g., Magallanes, 881 F.2d at 751 (The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.")

  Accordingly, the Court finds that the ALJ failed to adequately explain his reasons for rejecting the opinions of Anderson's treating physician, Dr. Morse.

  B. The ALJ Improperly Rejected Claimant's Pain Testimony

  Anderson further asserts that the ALJ improperly rejected Anderson's complaints of pain without adequate explanation. The ALJ stated that he did not "find the claimant credible insofar as he alleges excess symptoms that would disable him" because "[s]uch excess symptoms are unsupported by the record as a whole." (See Tr. at 31.) The ALJ did not explain which symptoms reported by Anderson were not credible.

  The ALJ found that Anderson has a medically determinable severe impairment. (See id. at 28.) "[O]nce the claimant produces objective medical evidence of an underlying Page 12 impairment, the adjudicator may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain." See Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (citing Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986)). "[A]lthough an adjudicator may find the claimant's allegations of severity to be not credible, the adjudicator must specifically make findings which support this conclusion." See id. These findings, properly supported by the record, must be sufficiently specific to allow a reviewing court to conclude the adjudicator rejected the claimant's testimony on permissible grounds and did not `arbitrarily discredit a claimant's testimony regarding pain.'" See id. at 345-46 (quoting Elam v. Railroad Retirement Bd., 921 F.2d 120, 1213-14 (11th Cir. 1991)). "[A] reviewing court should not be forced to speculate as to the grounds for an adjudicator's rejection of a claimant's allegations of disabling pain." See id. at 346. "General findings are insufficient; rather the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." See Lester, 81 F.3d at 834.

  The ALJ has not attempted to identify the portions of Anderson's testimony that he found not to be credible. He also has failed to identify the evidence that undermines Anderson's complaints, instead finding more generally that Anderson's "excess symptoms are unsupported by the record as a whole." (See id. at 31.) This analysis is wholly inadequate. See Bunnell, 947 F.2d at 345-46.

  Anderson testified before the ALJ that he is able to sit for 45 minutes before he needs to get up and walk around. (See Tr. at 42.) He further testified that if he were instructed to sit for 45 minutes, then stand by his chair, and then sit back down again, he would not be capable of sustaining that activity for a period of "a couple of hours." (See id.) He has trouble sitting through a church service. (See id. at 45.) He testified that it would not be feasible for him to stand for two hours at a time, six hours out of a day, because he has gone shopping with his wife, and he cannot shop 45 minutes to an hour without having to lean on a shopping cart for support. (See id. at 46.) He also testified that he is in constant pain and that walking makes the pain worse. (See id., at 50-51.) Page 13

  Although the ALJ failed to identify the portions of Anderson's testimony that he found to be not credible, he did note, in support of his conclusion that Anderson could stand one to two hours at a time, that Anderson was able to "sit through the hearing, getting up once after about an hour and then sitting down after only a couple of minutes, and appearing fairly comfortable." (See Tr. at 29.) The ALJ also noted that Anderson's "attendance at vocational rehabilitation classes has been excellent." This evidence is consistent with Anderson's testimony before the ALJ. In addition, the Ninth Circuit has held that "[t]he fact that a claimant does not exhibit physical manifestations of prolonged pain at the hearing provides little, if any, support for the ALJ's ultimate conclusion that the claimant is not disabled or that his allegations of constant pain are not credible." See Gallant v. Heckler, 753 F.2d 1450, 1455 (9th Cir. 1984). Moreover, the ALJ has failed to explain any basis for inferring, from Anderson's ability to sit at the hearing and in his vocational rehabilitation classes, that Anderson can stand for two hours at a time and for six of eight hours in a workday.

  The ALJ also stated that because Anderson accepted a disability retirement package from his position as a bus driver, he had little financial incentive to return to work activity. (See Tr. at 29.) To the extent this comment is intended to provide a basis for rejecting Anderson's pain testimony, it is not supported by the record. The record indicates that Anderson earned approximately $60,000 as a bus driver in 1996, and that he was receiving a retirement benefit of roughly $3,000 per month. (See Tr. at 41, 118.) There is no evidence that Anderson would lose his retirement benefit if he were able to return to work in another occupation. Moreover, the evidence is undisputed that Anderson approached his vocational rehabilitation classes with enthusiasm. (See e.g., id. at 407.)

  Accordingly, the Court finds that the ALJ failed to adequately explain his reasons for rejecting Anderson's complaints of pain.

  C. The ALJ Failed to Adequately Consider the Opinions of the Consulting Physicians

  Anderson argues that the opinions of the consulting physicians the ALJ relied upon Page 14 do not constitute substantial evidence in support of the ALJ's conclusion that Anderson could perform light work despite his medical condition. As noted above, "substantial evidence* is "such relevant evidence which a reasonable person might accept as adequate to support a conclusion."' See Desrosiers, 846 F.2d at 576 (quoting Richardson, 402 U.S. at 402). The ALJ's brief discussion of the medical evidence relies almost entirely on the opinions of consulting physicians, Dr. Kimelman and Dr. Mandell. (See Tr. at 28.)

  The ALJ first states that Dr. Kimelman and Dr. Mandell both "bluntly concluded the claimant was capable of light work." (See id. at 28.) In fact, as Anderson correctly notes, only Dr. Mandell actually used the term "light work." (See id. at 419.) Dr. Mandell examined Anderson for purposes of Anderson's workers' compensation claim, not with respect to his claim for social security disability benefits. (See id. at 415.) He did not state that he was using the Social Security definition of "light work" and did not opine as to whether Anderson was capable of "standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday." See SSR 83-10. Thus, Dr. Mandell's statement that he would limit Anderson "to light work," See id. at 419, has no bearing on whether Anderson can perform "light work" as defined by the Social Security regulations. See SSR 96-5p ("Adjudicators must not assume that a medical source using terms such as "sedentary" and light" is aware of our definitions of the terms.") Thus, the ALJ erred in relying on Dr. Mandells statement that Anderson could perform light work.*fn4

  Dr. Kimelman did not use the term light work" at all in his evaluation. He did, however, indicate that he considered Social Security guidelines in evaluating Anderson's abilities. (See Tr. at 382.) After conducting numerous specific tests on Anderson, Dr. Kimelman concluded that Anderson was capable of both standing and sitting "[u]p to 2 hours at a time for 6 out of 8 in a day." (See Tr. at 383.) Anderson contends that Dr. Kimelman's conclusions are unreliable because he failed to note that Anderson's right leg Page 15 had atrophied. Dr. Kimelman did not opine on the degree of atrophy, or lack thereof, in Anderson's right leg, however, and nothing in his report suggests that physical measurements were taken of Anderson's legs. Instead, his report relies largely on the results of various tests designed to measure strength, flexibility and tenderness. Dr. Kimelman's conclusion that Anderson is able to stand and sit for up to two hours at a time for six out of eight hours in the workday, based on the results of the extensive tests performed by Dr. Kimelman, could provide the substantial evidence necessary for a finding that Anderson is capable of performing light work. Dr. Kimelman's conclusion, however, is contradicted by Dr. Morse's conclusion that Anderson must be permitted to sit and stand at will as well as by Anderson's testimony that his pain precludes him from sitting and standing for more than 45 minutes at a time, neither of which, as explained above, were properly considered by the ALJ.

  The ALJ also relied on "evidence of exaggeration found by both Dr. Kimelman and Dr. Mandell, especially in the difference between recumbent and sitting straight leg raising[.]" (See id. at 28.) In fact, as Anderson correctly notes, Dr. Kimelman found no difference between Anderson's recumbent and sitting straight leg raising. (See Tr. at 378, 382.) Although both Dr. Mandell and Dr. Trauner did find significant differences between recumbent and straight leg raising, (see id. at 371, 417), the ALJ did not discuss the discrepancy between Dr. Kimelman's findings on this point, and the findings of Dr. Mandell and Dr. Trauner. All three physicians are examining physicians. "[L]ike the opinion of a treating doctor, the opinion of an examining doctor, even if contradicted by another doctor, can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the record." See Lester, 81 F.3d at 830-31. As the ALJ did not address the discrepancies in the results of the examining physicians' leg-raising tests, he failed to provide specific reasons for rejecting Dr. Kimelman's results, which did not show any exaggeration by Anderson.

  Accordingly, for all of the reasons discussed above, the Court finds that, although Dr. Kimelman's conclusions could be the basis for a finding that Anderson could perform Page 16 light work, the ALJ did not adequately explain his reasons for choosing among the conclusions of the examining physicians.

  D. Remand

  The Court has found that the ALJ failed to adequately explain his reasons for rejecting Dr. Morse's conclusions as to work restrictions and Anderson's testimony with respect to the extent and effect of his pain, and for choosing among the opinions of the examining physicians.

  Where the ALJ has improperly rejected relevant evidence, some courts have declined to "remand solely to allow the ALJ to make specific findings" regarding that evidence; rather, such courts have credited the improperly rejected evidence as true and remanded solely for an award of benefits. See Lester, 81 F.3d at 834 (internal quotation and citation omitted); see also Smolen, 80 F.3d at 1292 (holding court may remand for award of benefits "where the record has been fully developed and where further administrative proceedings would serve no useful purpose"). Other courts, however, are "not convinced that the `crediting as true' doctrine is mandatory in the Ninth Circuit." See Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) (discussing cases; remanding for reconsideration of claimant's pain testimony); see also Bunnell v. Barnhart, 336 F.3d 1112, 1115-16 (9th Cir. 2003) (remanding for reconsideration where, inter alia, ALJ tailed to provide adequate reasons for rejecting the opinion of the treating physicians" and "did not properly reject [the claimant's] subjective complaints").

  Here, "outstanding issues must be resolved before a proper determination can be made." See id. at 1115. In particular, issues remain as to whether the ALJ must credit Anderson's pain testimony and Dr. Morse's opinion that Anderson is limited to work where he is allowed to sit/stand at will. Issues also remain as to whether Anderson is exaggerating his symptoms, as the ALJ failed to adequately explain why he credited the findings of examining physicians Dr. Mandell and Dr. Trauner over those of Dr. Kimelman on that issue. Even if the Court were to credit all of the improperly rejected evidence in Anderson's favor, issues remain as to the availability of jobs if Anderson were required to Page 17 sit and stand at will. The vocational expert testified that even if Anderson were required to sit and stand at will, he could perform the job of Cashier II. (See Tr. at 66-67.) The vocational expert's testimony on this point was not addressed at any length, however, and the Court finds that it was not sufficiently developed or dear to constitute substantial evidence in support of a finding that Anderson retains the residual functional capacity to perform other work were he required to sit and stand at will. (See id. at 68-75.) Nonetheless, the vocational expert's testimony raises issues about Anderson's ability to work, even considering the limitations imposed by Dr. Morse, that should be developed further on remand.

  Because of the number of issues that were improperly resolved by the ALJ, the Court cannot find that "the record has been fully developed and . . . further administrative proceedings would serve no useful purpose." See Smolen, 80 F.3d at 1292. Consequently, the Court will not grant Anderson's request to remand the action for calculation of benefits. Instead, the Court will remand the action for further administrative proceedings consistent with this decision.


  For the reasons expressed above, the Court hereby GRANTS Plaintiff's Motion for Summary Judgment, DENIES Defendant's Motion for Summary Judgment, and REMANDS for further proceedings consistent with this decision.

  The Clerk shall close the file.


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