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United States District Court, S.D. California

December 29, 2005.

LLOYD YOST, Plaintiff,
JOANNE B. BARNHART, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: RUBEN BROOKS, Magistrate Judge

Plaintiff Lloyd Yost seeks judicial review of Social Security Commissioner Jo Anne B. Barnhart's determination that he is not entitled to disability benefits. On July 5, 2005, Yost filed his Motion for Summary Judgment [doc. no. 10] and Memorandum of Points and Authorities in Support of Motion [doc. no. 11], requesting reversal of Administrative Law Judge ("ALJ") Peter Valentino's September 19, 2003, finding that he was not disabled.

Plaintiff argues that the ALJ erred by failing to accord controlling weight to the opinion of Yost's treating physicians. (Pl.'s Mem. 17-21.) Plaintiff also argues Judge Valentino erred in relying on the testimony of the medical expert to conclude Yost could engage in substantial gainful activity because the expert, an internist, did not express an opinion regarding Plaintiff's depression. (Id. at 21-23.) Yost asks the Court to reverse the ALJ's decision denying disability benefits or remand the case to a different administrative law judge for further proceedings. (Id. at 23.) Plaintiff also requests an award of attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C.A. § 2412 (West 1994 & Supp. 2005). (Admin. R. at 23.)

  On July 14, 2005, the Commissioner filed her Cross-Motion for Summary Judgment [doc. no. 12] and Memorandum of Points and Authorities in Support of Cross-Motion [doc. no. 13], arguing that the findings of Judge Valentino should be affirmed because they are supported by substantial record evidence. (Def.'s Mem. 7.)

  The Court found the Motions for Summary Judgment suitable for decision without oral argument and took the matter under submission on September 13, 2005 [doc. no. 14]. See S.D. Cal. Civ. L.R. 7.1(d) (1).


  At the time of the ALJ's decision, Yost was fifty-nine years old and qualified as a "person of advanced age." (Admin. R. at 19); 20 C.F.R. § 404.1563 (e) (2003). Plaintiff is currently sixty-two. (Pl.'s Mem. 1.) Yost has a law degree and past relevant work as in-house trial counsel for an insurance company. (Id.; Admin. R. at 15.) He has not engaged in substantial gainful employment since October 15, 2000. (Admin. R. at 15-16.)

  Yost filed an application for disability insurance benefits on August 24, 2001, claiming disability based on ulcerative colitis, overactive bladder (frequent and uncontrollable urination and incontinence), chronic depression, and interstitial cystitis. (Id. at 66, 89, 91.) The claim was denied on October 9, 2001. (Id. at 24.) Plaintiff filed a request for reconsideration on December 18, 2001; it was denied on January 9, 2002. (Id. at 28, 32.) Yost filed a timely request for an administrative hearing on March 15, 2002. (Id. at 36.)

  Judge Valentino conducted the hearing on July 8, 2003. (Id. at 281.) Plaintiff was represented at the hearing by attorney William Radar. (Id.) Dr. Arvin J. Klein, a medical expert specializing in internal medicine and cardiology, testified regarding Yost's physical condition. (Id. at 47, 314-18.) Gloria Lasoff, M.A., a vocational expert, testified regarding Plaintiff's ability to work. (Id. at 46, 318-23.) On September 19, 2003, the ALJ denied Yost's application for disability benefits. (Id. at 12.) Plaintiff requested review of the decision on November 7, 2003. (Id. at 9.) On January 16, 2004, the Appeals Council denied his request for review. (Id. at 5.)


  A. Physical Condition

  The earliest medical evidence in the record relating to Yost's claim for disability benefits is a letter dated August 21, 2000, from Dr. Michael P. Guerena, to Plaintiff's referring doctor, John R. Connolly.*fn1 (Id. at 189.) Dr. Guerena, a urologist, saw Yost regarding worsening urinary frequency. (Id.) He advised Plaintiff that if his symptoms did not improve after taking Flomax for one month, he would recommend a cystoscopy. (Id.) Dr. Guerena also noted that Yost complained of "what sounds like" irritable bowel syndrome and potential peptic ulcer disease. (Id.)

  On August 22, 2000, Plaintiff saw Dr. Connolly and reported having "frequent loose stools and abdominal cramping for the last month or so." (Id. at 150.) According to Dr. Connolly's notes, Yost had no previous history of colitis, but his "wife ha[d] it." (Id.) After diagnosing Plaintiff with hypertension, degenerative disc disease of the lower back, depression, insomnia, and colitis, Dr. Connolly recommended a barium enema and a low residue diet. (Id.) Yost saw Dr. Connolly twice in September before having the recommended barium enema, and he continued to report diarrhea and urinary frequency. (Id. at 147-49.) Dr. Connolly continued to list colitis as his assessment of Plaintiff's condition. (Id.)

  On September 29, 2000, Yost returned to Dr. Guerena, who advised Dr. Connolly that Plaintiff's urinary symptoms had not improved and that Yost had been diagnosed with interstitial cystitis. (Id. at 188.) Interstitial cystitis is a condition resulting in recurring discomfort or pain in the bladder or pelvic area characterized by an urgent need to urinate (urgency), a frequent need to urinate (frequency), or a combination of these symptoms. Interstitial Cystitis: A Bladder Disorder, http:// (last visited Nov. 29, 2005). Although there are no records of when or how the interstitial cystitis diagnosis was made, the condition is not in dispute. Judge Valentino accepted the diagnosis based on the medical evidence of record. (Admin. R. at 16.) On October 4, 2000, Plaintiff's barium enema revealed diverticulosis (a condition where diverticula — pouch or sac openings — form in the intestine) without radiographic evidence of diverticulitis (a condition where diverticula in the colon become inflamed or infected). (Id. at 135); Stedman's Medical Dictionary 513 (26th ed. 1995).

  Yost continued to complain of the same colitis and cystitis symptoms on his next visits with Dr. Connolly and Dr. Guerena. (Admin. R. at 143, 146-47, 187.) The colitis was slightly improved with Levsinex, but Plaintiff stopped taking that medication some time at the end of 2000 "because it made his mouth to [o] dry." (Id. at 146-47.) Yost also complained to Dr. Guerena that none of the medications he had tried for his cystitis had resulted in improvement. (Id. at 187.) Plaintiff asked to try a medication called Detrol, and Dr. Guerena prescribed it for him. (Id.)

  Yost returned to Dr. Connolly and Dr. Guerena for treatment of his ulcerative colitis and interstitial cystitis in October of 2001. (Id. at 165, 184.) Both doctors opined that these conditions rendered Plaintiff unable to work as a trial attorney. (Id.)

  On October 3, 2001, Dr. Thu N. Do, a state agency doctor, reviewed the record and opined that Yost could perform a range of light work activity. (Id. at 155-62.)

  Plaintiff continued reporting urinary urgency and frequency in November of 2001, and he experienced minimal improvement while on Ditropan, a drug prescribed for him by Dr. Guerena. (Id. at 183.) Dr. Guerena concluded that Yost more than likely had interstitial cystitis. (Id.) He prescribed another month of gradually increasing Ditropan. (Id.)

  In December of 2001, Dr. Guerena increased the dosage of Plaintiff's Ditropan and later prescribed a new drug — Elmiron — because Yost's urinary urgency and frequency had not improved. (Id. at 182-82.) On December 18, 2001, Dr. Connolly denied Plaintiff's request for a Percocet (narcotic pain medication) prescription for abdominal cramps after eating. (Id. at 197); Percocet, (last visited Dec. 1, 2005).

  On March 28, 2002, Dr. Stuart B. Kramer, an internist, conducted a qualified medical evaluation of Yost regarding cumulative trauma he sustained between January 24, 2000, and January 24, 2001. (Id. at 202.) From his physical examination of Plaintiff, Dr. Kramer concluded Yost suffered from interstitial cystitis, ulcerative colitis, hypertension, and anxiety and depression with secondary insomnia. (Id. at 202, 211.) Dr. Kramer believed Plaintiff's ulcerative colitis and interstitial cystitis conditions were permanent and stationary. (Id. at 213.) The doctor opined that "Yost must be precluded from working in a stressful environment in order to prevent aggravation of his colitis and interstitial cystitis conditions" and must always have easy access to a bathroom. (Id. at 214.) These work restrictions would "prevent [Plaintiff] from performing his customary work activity as a trial attorney." (Id.) Given Yost's physical condition, emotional problems, and advanced age of fifty-nine, Dr. Kramer recommended that Plaintiff "be considered permanently totally disabled." (Id.) However, Dr. Kramer did not have the complete medical records from Dr. Guerena and Dr. Connolly, and he reserved the right to change his opinion upon reviewing them. (Id. at 211, 213.)

  On April 5, 2002, Yost consulted Dr. Connolly about pain with exertion in his right elbow. (Id. at 198.) Plaintiff denied any injury, but admitted that he plays golf. (Id.) Dr. Connolly assessed lateral epicondylitis (i.e., tennis elbow) and prescribed heat, rest, avoidance of certain movements, and Voltaren, an anti-inflammatory. (Id.); Stedman's Medical Dictionary, supra, at 582; Voltaren Drug Information, (last visited Dec. 1, 2005). Yost complained of the same pain again on May 21, 2002. (Admin. R. at 199.) He received the same advice and was also injected with Depo-Medrol, an anti-inflammatory, and Marcaine, a local anesthetic. (Id.); Depo-Medrol Drug Information, (last visited Dec. 1, 2005); Marcaine Drug Information, http://www. (last visited Dec. 12, 2005).

  On September 3, 2002, Plaintiff complained of pain in his left elbow. (Admin. R. at 200.) Dr. Connolly assessed medial epicondylitis, advised heat and rest, and injected the elbow with Depo-Medrol and Marcaine. (Id.) Yost returned to see Dr. Connolly on December 31, 2002, complaining about pain in both elbows. (Id. at 201.) Plaintiff received a prescription for Vicodin, a narcotic painkiller. (Id.); Vicodin Drug Information, (last visited Dec. 1, 2005). The chart notes again indicate Yost had been playing golf. (Admin. R. at 201.)

  Plaintiff saw Dr. Guerena about his urinary problems in April, July, and September of 2002, and in March and July of 2003. (Id. at 271-76.) On April 1, 2002, Yost complained of severe urinary urgency and frequency requiring him to urinate every one to two hours. (Id. at 271.) At this point, Plaintiff was not experiencing significant improvement with the prescribed drugs, Ditropan XL or Elmiron. (Id.) Dr. Guerena discussed various treatment options with Yost, and they ultimately decided to continue the Elmiron therapy and follow up in three months. (Id.)

  At the three-month followup on July 18, 2002, Dr. Guerena continued the medical management previously recommended despite the lack of improvement in Plaintiff's condition. (Id. at 272.) On September 16, 2002, Dr. Guerena recommended Elmiron and Ditropan XL be continued despite the lack of improvement in Yost's symptoms. (Id. at 273.) Plaintiff's medical management was continued again on March 10, 2003, and a six-month followup was recommended. (Id. at 274.) However, Yost next saw Dr. Guerena on July 2, 2003. (Id. at 276.) After discussing various treatments, Dr. Guerena recommended the Elmiron and Ditropan be continued and Prelief dietary supplements be added. (Id.) Prelief is used to control pain and urgency with interstitial cystitis. Prelief Tablets and Granulate Information, (last visited Dec. 5, 2005).

  B. Mental Condition

  On August 9, 2001, Dr. Connolly had a follow-up appointment with Yost. (Id. at 143.) The doctor noted that Yost had been terminated from his job and was getting divorced. (Id.) He referred Plaintiff to a psychiatrist. (Id.) Yost met with the psychiatrist, Dr. Dennis M. Pavlinac, twice in September of 2001. (Id. at 151-53.) Dr. Pavlinac diagnosed Plaintiff with "moderate to severe major depression, . . . as well as generalized anxiety disorder." (Id. at 153.)

  On September 11, 2001, Yost also began seeing Edward G. Spencer, Ph.D., a clinical psychologist. (Id. at 115.) Dr. Spencer diagnosed Plaintiff as suffering from severe major depressive disorder, panic disorder without agoraphobia, alcohol dependence, and marijuana use. (Id. at 118.) Yost's "general attitude [wa]s very fearful and apprehensive." (Id. at 116.) Plaintiff's Beck Depression Inventory Score was a fifty-five, and his Beck Anxiety Inventory Score was a forty-six. (Id.) On the Beck scale a twenty-nine to sixty-three is the severe range. (Id.); Introduction to the Beck Scales, (last visited Dec. 1, 2005). At this initial visit, Dr. Spencer found that Yost was unable to perform his customary job duties because Plaintiff's physical and psychological symptoms were overwhelming. (Admin. R. at 117.)

  Dr. H.N. Hurwitz, a psychiatrist, reviewed the record presented to the Social Security Administration ("SSA") and opined on September 21, 2001, that Yost did not suffer a severe mental impairment, and his symptoms could be expected to improve. (Id. at 119, 133.)

  In response to the Social Security Administration's October 8, 2001, denial of Plaintiff's claim for disability benefits, Dr. Spencer wrote a letter, dated October 26, 2001, stating that Yost's depression was continuous, not single episode. (Id. at 24, 175.) Dr. Spencer further stated that Plaintiff cannot adjust to ordinary emotional stresses, or follow basic instructions, and his condition would keep him from working for a period of twelve consecutive months. (Id. at 175.) Dr. Spencer asked the SSA to reconsider its denial of Yost's disability claim. (Id.)

  On November 23, 2001, Dr. Spencer completed a Mental Impairment Questionnaire regarding Plaintiff. (Id. at 170-74.) Dr. Spencer found that Yost's current Global Assessment of Functioning ("GAF") of forty was the highest GAF he had scored in the past year. (Id.) The 100-point GAF scale is used to report an individual's overall level of functioning and ability to carry out daily living activities. Axis V: Global Assessment of Functioning Scale, (last visited Dec. 1, 2005). Plaintiff continued to meet and exceed the Diagnostic and Statistical Manual of Mental Disorders' ("DSM-IV") diagnostic criteria for major depressive disorder and panic disorder, despite his voluntary participation in a minimal usage alcohol reduction program. (Id. at 170-71.) Dr. Spencer described Yost's prognosis as "guarded" and stated that Plaintiff's impairment had lasted or could be expected to last at least twelve months. (Id. at 171.)

  In a follow-up letter to Yost's attorney, Dr. Spencer interpreted Plaintiff's Beck Depression and Anxiety Inventory scores before and after beginning the alcohol reduction program prescribed by Dr. Spencer to show that there was no relationship between the level of Yost's depression and his alcohol use. (Id. at 169.)

  Dr. Spencer's notes, dated December 12, 2001, indicate that Plaintiff was still depressed but golfing three times a week because he felt better being out. (Id. at 264.) Later that month, Dr. Spencer completed a Substance Use Questionnaire about Yost and noted that Plaintiff was drinking three to five vodka tonics per night beginning in December 1999 or January 2000, which continued until he began treatment on September 11, 2001. (Id. at 166.) This pattern of heavy drinking stopped in October of 2001. (Id.) Dr. Spencer also found that the cause of Yost's depression could not accurately be determined because his self-reported symptoms began in early 2000, around the same time his alcohol use started. (Id. at 167.) Without the alcohol use, Dr. Spencer opined that Yost's depression would be less disabling, but Yost would still be totally disabled because of a number of unnamed other factors and their net impact on Plaintiff. (Id.)

  Yost continued to see Dr. Spencer between January and March 2002. (Admin. R. at 245-49.) In March 2002, Dr. Spencer's notes reveal Plaintiff was still golfing between one and three times per week. (Id. at 249.)

  On April 3, 2002, Dr. Robert Zink, Ph.D., a clinical psychologist, completed a comprehensive examination of Yost for Plaintiff's workers' compensation claim. (Id. at 217-39.) Dr. Zink found Yost suffered major depression "predominantly (more than 50%) caused by his emotional response to his perception of unreasonable work demands at Nationwide Insurance. . . ." (Id. at 233.) Dr. Zink also stated that if factual data supports Plaintiff's contentions about unreasonable work demands and workload increases, Yost's claim may be compensable. (Id. at 234.)

  Based on the information available and his review of treatment records, Dr. Zink opined that Plaintiff was "likely Temporarily Totally Disabled on a psychological basis from the time he left work as certified by his family physician in April of 2000 through the current date" of April 3, 2002. (Id. at 235.) However, Dr. Zink believed that Yost's period of disability had come to an end by the time he evaluated him. (Id.)

  In Dr. Zink's opinion, Plaintiff "suffer[ed] a Permanent Partial Psychological Disability on the open labor market which is equivalent to a `slight' (approximately 20%) disability." (Id. at 235, 239.) Dr. Zink believed Yost was "not psychologically able to return to work as a civil litigation/trial attorney." (Id. at 236.) He did not offer an opinion about Plaintiff's psychological capacity for other work. (See id.)

  From April 2002 until January 2003, Yost continued to seek psychological counseling from Dr. Spencer. (Id. at 243, 250-54, 256-58, 260-61, 263-64, 266-67.) In April 2002, Dr. Spencer's plan for Plaintiff focused on maintenance and stabilization. (Id. at 250.) Yost was not feeling well in May and looked sluggish and fatigued. (Id. at 251.) Plaintiff was tense, sad, and feared he was losing control in early July 2002. (Id. at 253.) Later that month, Yost was severely depressed. (Id. at 254.) At Plaintiff's August 28, 2002, session, Dr. Spencer did not take any notes on Yost's emotional condition. (Id. at 243.)

  Plaintiff reported no setbacks at his September 25, 2002, session with Dr. Spencer. (Id. at 265.) Yost acknowledged that his conditions were not life-threatening, but he was experiencing anxiety over not knowing where he was going to be in the future. (Id.) On the same day, Dr. Spencer assessed Plaintiff's suicidal ideation. (Id. at 257.) Although Yost experienced feelings of helplessness and hopelessness, Dr. Spencer found that Plaintiff's suicidal ideations were passive. (Id.) Yost was experiencing agitation, apprehension, anxiety, depression, and fear on October 11, 2002. (Id. at 258.) His GAF score was fifty-five, and Dr. Spencer listed sixty as the highest GAF of the year. (Id.) Plaintiff commented that he was "down — but not hopeless." (Id.) Yost continued to report a depressed mood and anxiety on October 18, 2002. (Id. at 260.) Dr. Spencer again listed Plaintiff's GAF at fifty-five. (Id.) On November 14, 2002, Yost reported being highly anxious and agitated, but he was not having suicidal ideations and still had a GAF of fifty-five. (Id. at 263.)

  Yost reported on December 12, 2002, that he did not feel he was actively participating in his life. (Id. at 264.) However, he felt better when he was out playing golf. (Id.) Additionally, Plaintiff's "physical complaints [we]re being pretty well [managed] by [his] medications. . . ." (Id.) However, two and one-half weeks later, on December 30, 2002, Yost told Dr. Spencer that stress had exacerbated the pain from his colitis and stomach cramps to a ten, on a scale of one to ten, with ten being the most severe. (Id. at 266.)

  On January 31, 2003, Plaintiff was agitated and anxious. (Id. at 267.) Dr. Spencer listed Yost's GAF as fifty-five. (Id.) Plaintiff reported that his medical conditions were impacting his mental state. (Id.)

  Yost also saw his psychiatrist, Dr. Pavlinac, in October and November 2002. (Id. at 269-70.) On October 16, 2002, Dr. Pavlinac found Plaintiff was more depressed; he suffered from extreme stress; and he was experiencing passive suicidal ideations. (Id. at 269.) Dr. Pavlinac continued Yost's drug prescriptions, originally prescribed in September of 2001, for Effexor, an antidepressant, and Klonopin, a benzodiazepine prescribed for generalized anxiety. (Id.); Effexor Information, http:// (last visited Dec. 5, 2005); Klonopin Information, (last visited Dec. 5, 2005). On November 26, 2002, Plaintiff was still depressed, lethargic, and experiencing passive suicidal ideations. (Id. at 270.) Dr. Pavlinac diagnosed Yost with a moderate depressed or anxious mood and increased his dosage of Effexor. (Id.)


  A. Plaintiff's Testimony

  Yost testified at the administrative hearing on July 8, 2003. (Id. at 281-314.) He was sixty years old at the time, and his only occupation had been as an in-house trial attorney for insurance companies. (Id. at 281-82.) Plaintiff was employed by Nationwide Insurance ("Nationwide") at the onset of his disability, which was October 15, 2000. (Id. at 282.)

  Yost went on sick leave beginning October 15, 2000, due to a combination of problems, including colitis, cystitis, hypertension, depression, and anxiety. (Id. at 282, 284, 286.) Plaintiff's colitis symptoms started in early 2000 and gradually worsened until he stopped working in October of 2000 because of the severe stomach cramps. (Id. at 282-83.) In mid-2000, Yost also began to experience urinary urgency and frequency that progressively worsened. (Id. at 284.)

  Plaintiff's colitis and urinary problems began to interfere with his work schedule in April or May of 2000, when co-workers had to fill in and complete Yost's work because of his physical problems. (Id. at 285.) Dr. Connolly attributed the onset of the colitis to job stress resulting from the expansion of Nationwide, which increased Yost's workload and forced him to work with new claims adjusters and adjust to new procedures. (Id. at 287-88.) Yost agreed. (Id. at 287.) These new procedures required Plaintiff, who was computer illiterate, to use a computer, and Nationwide did not provide him with the appropriate computer training. (Id. at 288.) Although Nationwide's complaints about Yost's job performance were not related to his medical conditions, the criticisms created more stress for Plaintiff. (Id. at 289.)

  Yost was already experiencing depression and anxiety problems when he stopped working in October of 2000. (Id. at 286.) Prior to his termination from Nationwide in January of 2001, Plaintiff discussed psychological and psychiatric treatment for his depression and anxiety with Dr. Connolly, but he did not begin that treatment until after Nationwide terminated him. (Id. at 289-90.) Dr. Connolly referred Yost to Dr. Spencer, a psychologist, and Dr. Pavlinac, a psychiatrist. (Id. at 290.) At his first visit with Dr. Spencer, Plaintiff was extremely depressed and very anxious about his financial situation, health condition, and inability to return to work. (Id.) At first, medications prescribed by Dr. Guerena did not help much, but eventually the antidepressants prescribed by Dr. Pavlinac put Yost on "more of an even keel." (Id. at 290-91.) Even with the medications, however, Plaintiff had trouble concentrating, was irritable, and had little energy. (Id. at 291-92.)

  Yost had passive suicidal ideation; he had not taken any steps toward suicide; he had thoughts of weakness and of wishing he were dead. (Id. at 292-93.) Other symptoms of his depression were loss of social skills, reclusive behavior, irritability, and sleep disturbances. (Id. at 293-94.) Plaintiff's sleep disturbances resulted from both depression and his cystitis symptoms of urinary urgency and frequency. (Id. at 294.)

  Plaintiff also experienced a loss of appetite and, as a result, lost fifteen to twenty pounds since early 2000. (Id. at 295.) His current weight is stable at about 170 pounds. (Id.) He is presently able to control his colitis symptoms through his diet and consumes mostly soup. (Id. at 299-300.)

  Yost cannot control the interstitial cystitis symptoms of urinary urgency and frequency by diet, however. (Id. at 300.) Plaintiff experiences these symptoms throughout the day — on average, once or twice an hour. (Id. at 300, 309.) Medication has not alleviated them. (Id. at 298.) Yost believes he could continue working if he had a desk next to a bathroom, but he does not believe an employer would find bathroom breaks once or twice an hour acceptable. (Id. at 310.) Plaintiff could not conduct a trial or deposition and take a break every twenty minutes. (Id.) Yost doubts that he could function in any job considering the number of bathroom breaks he finds necessary and taking his depression into account. (Id. at 311.)

  Plaintiff has not attempted to find employment other than trial work since he was fired in October of 2000. (Id. at 300.) He received state disability income for one year and a $17,000 workers compensation settlement, minus attorney's fees. (Id. at 300-01.) Additionally, as a result of his divorce, Yost received approximately 20% of the proceeds from the sale of the community property home. (Id. at 301.)

  Plaintiff admits he was drinking when he first sought treatment for his depression and anxiety with Dr. Spencer in September of 2001. (Id. at 302.) However, he testified that "immediately thereafter [he became] completely alcohol free." (Id.) Yost also used marijuana to help relieve his abdominal cramps, but it did not work. (Id. at 303.)

  Plaintiff agreed that drinking five drinks a night will cause some urgency or frequency problems but says he never drank that much. (Id. at 303-04.) Yost testified he has been alcohol-free since September of 2001, although he never enrolled in drug and alcohol treatment. (Id.)

  Plaintiff's regular activities include practicing on the putting green at a public golf course an average of three times a week, where he frequently sees the same people. (Id. at 305.) Yost also watches TV, drives his car to the grocery store, reads legal fiction and history books, tries to help his landlady with chores around the house, such as laundry and dishes, and plays cards with his landlady. (Id. 307-08.)

  Plaintiff has not participated in vocational rehabilitation, despite encouragement from his counselor, because the doctors involved in his workers' compensation claim determined he was not a candidate for it. (Id. at 309.)

  In response to questions from Dr. Arvin Klein, the medical expert, Yost stated he is 99% positive he had the following tests performed upon him: a cystoscopy, a biopsy of his bladder, an x-ray of his kidneys, and a colonoscopy. (Id. 311-14.) However, Plaintiff could not recall which doctors ordered or administered the tests. (Id. at 313.)

  B. The Medical Expert's Testimony

  Judge Valentino heard testimony from the medical expert, Dr. Klein. (Id. at 311-18.) According to the doctor, there were no records of the cystoscopy, the biopsy of Yost's bladder, the x-ray of his kidneys, or the colonoscopy in the claim file. (Id. at 313.) The ALJ asked Dr. Klein to make an assessment based upon the records in Yost's file. (Id. at 314.)

  Dr. Klein found no substantiating reports of Plaintiff's alleged diagnoses of colitis, interstitial cystitis, hypertension, or depression. (Id. at 314.) He found references to Yost's frequent urinary problems being resistant to medication but opined that "the medical symptoms are not consistent with the medical findings so far." (Id. at 315.)

  Dr. Klein believed Plaintiff had a "moderately severe impairment secondary to his symptomatology." (Id.) However, Yost did not meet the listing requirements for hypertension, genitourinary impairments, digestive system impairments, or ulcerative colitis. (Id. at 315-16.) According to the medical expert, the medical criteria for ulcerative colitis includes "bloody diarrhea occurring with a frequency of six to eight times per day, considerable weight loss, and the finding of low protein." (Id. at 315.) Interstitial cystitis, an inflammation of the bladder, is not considered a listing impairment. (Id. at 312-13.)

  The doctor testified that "depression seems to be the major impairment with possible aggravation by alcohol and marijuana," but it was outside his medical specialty. (Id. at 315.) He noted that at least one medical record mentioned high stress as a cause of some of Plaintiff's symptoms. (Id. at 316.)

  Dr. Klein opined that Plaintiff was "capable of moderate exertional capability [up to] 25 to 50 pounds of exertion." (Id.) Yost's sitting, standing, and walking capability would be "six hours with close proximity to a bathroom." (Id.) Plaintiff has no limitation on pushing or pulling. (Id.) He has a "slight limitation in ladders and scaffolds because of his frequency of urination." (Id.) Yost has "[n]o limitations in manipulation, visual, or communication" tasks and no environmental limitations. (Id.)

  Plaintiff's attorney, William Radar, asked Dr. Klein what key findings he would expect to confirm the interstitial cystitis diagnosis if he had a cystoscopy report available. (Id. at 317.) According to Dr. Klein, the diagnosis itself, made by a pathologist from a biopsy, would be sufficient. (Id.)

  The medical evidence available to Dr. Klein consisted of Yost's testimony and complaints to his doctors of urinary urgency and frequency. (Id.) There is no documentation that a disease process is present "without either the biopsy or a cystoscopy." (Id.) The only objective evidence found in the records was that Plaintiff had scarification of the penis that "might put some pressure on the urethra," and "that would account for his symptoms." (Id.) Dr. Klein believed the interstitial cystitis and irritable bowel syndrome diagnoses were made "without any substantiation of actual disease." (Id. at 317-18.)

  Yost's attorney also asked whether Dr. Klein's opinion as to the level of impairment would change if he had substantiation of the diagnoses. (Id. at 318.) Notably, Dr. Klein stated that his diagnosis of a "moderately severe impairment" would not change even if the diagnoses were substantiated. (Id.) His opinion of Yost's residual functional capacity (RFC) would not change because the only limitation necessary would still be proximity to a bathroom. (Id.)

  C. The Vocational Expert's Testimony

  Judge Valentino also heard testimony from vocational expert, Gloria Lasoff. (Id. at 318-23.) The ALJ posed two hypothetical questions to Lasoff to determine Plaintiff's transferable work skills. (Id. at 319-21.) The first hypothetical was based on the medical expert's finding that Yost has a moderate exertional capacity: He can carry twenty-five to fifty pounds, can sit and stand six out of eight hours a day in close proximity to a restroom, and should avoid climbing ladders and scaffolds. (Id. at 319-20.) In response to this hypothetical, Lasoff stated that Plaintiff has transferable skills that would allow him to work as a paralegal or a legal researcher. (Id. at 320.) In San Diego, there are approximately 4,100 jobs in the legal assistant area, including paralegal, title researcher, title examiner, and abstractor. (Id. at 320-21.) Nationally, there are over 275,000 jobs in the legal assistant field. (Id. at 321.)

  The second hypothetical posed by Judge Valentino was based on a finding of severe depression with a GAF between thirty-five and forty. (Id.) According to Lasoff, Yost would be unable to do any work in the national economy with a GAF of thirty-five to forty. (Id.) Plaintiff's attorney then modified the ALJ's first hypothetical to include a limitation to simple repetitive tasks. (Id.) Lasoff agreed that a limitation to simple repetitive tasks would eliminate the jobs that would employ the transferable skills Yost possesses. (Id. at 322.)

  Plaintiff's attorney then asked Lasoff what medium exertional positions would be available to a person limited to simple repetitive tasks (unskilled labor) and proximity to a restroom. (Id.) According to Lasoff, assembly, cleaning, packing, and laundry positions would be available. (Id.) However, employers of unskilled laborers would typically not tolerate frequent restroom breaks. (Id.) An individual limited to simple repetitive tasks in the unskilled medium work range would not be able to maintain this type of job if he needed a restroom break twice an hour. (Id. at 322-23.)


  In his decision, Judge Valentino recounted Yost's medical, work, and educational history, as well as the evidence presented at the administrative hearing. (Id. at 15-20.) He then made the following findings:

1. The claimant meets the nondisability requirements for a Period of Disability and Disability Insurance Benefits set forth in Section 216(i) of the Social Security Act and is insured for benefits through the date of this decision.
2. The claimant has not engaged in substantial gainful activity since the alleged onset of disability.
3. The claimant has an impairment or a combination of impairments considered "severe" based on the requirements in the Regulations 20 CFR § 404.1520 (b). 4. These medically determinable impairments do not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4.
5. The undersigned finds the claimant's allegations regarding his limitations are not totally credible for the reasons set forth in the body of the decision.
6. The undersigned has carefully considered all of the medical opinions in the record regarding the severity of the claimant's impairments (20 CFR § 404.1527).
7. The claimant is unable to perform any of his past relevant work (20 CFR § 404.1565).
8. The claimant is an "individual of advanced age" (20 CFR § 404.1563).
9. The claimant has a 12th grade education (20 CFR § 404.1564).
10. The claimant has transferable skills from skilled work previously performed as described in the body of the decision (20 CFR § 404.1568).
11. The claimant has the residual functional capacity to perform a significant range of medium work as discussed in the body of the decision (20 CFR § 416.967).
12. Although the claimant's exertional and nonexertional limitations do not allow him to perform the full range of medium work, using Medical-Vocational Rule 203.16 as a framework for decision-making, there are a significant number of jobs in the national economy that he could perform. Examples of such jobs include work in legal research or as a paralegal of which there are 4,100/275,000 positions in the economy.
13. The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision (20 CFR § 404.1520 (f)).
(Id. at 20-21.)

  Based on all of the above, the ALJ concluded that Plaintiff is not entitled to a period of disability or Disability Insurance Benefits under the Social Security Act. (Id. at 21.) V. STANDARD OF REVIEW

  To qualify for disability benefits under the Social Security Act, an applicant must show that: (1) He or she suffers from a medically determinable impairment that can be expected to last for a continuous period of twelve months or more or result in death, and (2) the impairment renders the applicant incapable of performing the work that he or she previously performed or any other substantially gainful employment that exists in the national economy. See 42 U.S.C.A. § 423 (d) (1) (A), (2) (A) (West Supp. 2005). An applicant must meet both requirements to be classified as "disabled." Id.

  Sections 205 (g) and 1631 (c) (3) of the Social Security Act allow unsuccessful applicants to seek judicial review of the Commissioner's final agency decision. 42 U.S.C.A. §§ 405(g), 1383 (c) (3) (West Supp. 2005). This Court should affirm the Commissioner's decision "if it is supported by substantial evidence and if the Commissioner applied the correct legal standards." Howard ex. rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003) (citing Pagter v. Massanari, 250 F.3d 1255, 1258 (9th Cir. 2001)).

  Substantial evidence is what "`a reasonable person might accept as adequate to support [the ALJ's] conclusion,'" considering the record as a whole. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (quoting Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). It means "`more than a mere scintilla but less than a preponderance'" of the evidence. Howard, 341 F.3d at 1011 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). The Court considers the record as a whole, including the evidence that supports and the evidence that detracts from the ALJ's decision. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (citing Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997); Clem v. Sullivan, 894 F.2d 328, 330 (9th Cir. 1990)).

  To determine whether a claimant is "disabled," the Social Security regulations use a five-step process outlined in 20 C.F.R. § 404.1520. If an applicant is found to be "disabled" or "not disabled" at any step, there is no need to proceed further. Ukolov v. Barnhart, 420 F.3d 1002, 1003 (9th Cir. 2005) (citations omitted). Although the ALJ must assist the applicant in developing the record, the applicant bears the burden of proof during the first four steps. Tackett v. Apfel, 180 F.3d 1094, 1098 & n. 3 (9th Cir. 1999). If the fifth step is reached, however, the burden shifts to the Commissioner. Id. at 1098. The steps for evaluating a claim are:

Step 1. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is "not disabled" within the meaning of the Social Security Act and is not entitled to disability insurance benefits. If the claimant is not working in a substantially gainful activity, then the claimant's case cannot be resolved at step one and the evaluation proceeds to step two.
Step 2. Is the claimant's impairment severe? If not, then the claimant is "not disabled" and is not entitled to disability insurance benefits. If the claimant's impairment is severe, then the claimant's case cannot be resolved at step two and the evaluation proceeds to step three.
Step 3. Does the impairment "meet or equal" one of a list of specific impairments described in the regulations? If so, the claimant is "disabled" and therefore entitled to disability insurance benefits. If the claimant's impairment neither meets nor equals one of the impairments listed in the regulations, then the claimant's case cannot be resolved at step three and the evaluation proceeds to step four. Step 4. Is the claimant able to do any work that he or she has done in the past? If so, then the claimant is "not disabled" and is not entitled to disability insurance benefits. If the claimant cannot do any work he or she did in the past, then the claimant's case cannot be resolved at step four and the evaluation proceeds to the fifth and final step.
Step 5. Is the claimant able to do any other work? If not, then the claimant is "disabled" and therefore entitled to disability insurance benefits. If the claimant is able to do other work, then the Commissioner must establish that there are a significant number of jobs in the national economy that claimant can do. There are two ways for the Commissioner to meet the burden of showing that there is other work in "significant numbers" in the national economy that claimant can do: (1) by the testimony of a vocational expert, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2. If the Commissioner meets this burden, the claimant is "not disabled" and therefore not entitled to disability insurance benefits. If the Commissioner cannot meet this burden, then the claimant is "disabled" and therefore entitled to disability benefits.
Id. at 1098-99 (footnotes and citations omitted).

  Section 405 (g) permits this Court to enter a judgment affirming, modifying, or reversing the Commissioner's decision. 42 U.S.C. § 405(g). The matter may also be remanded to the Social Security Administrator for further proceedings. Id.


  A. The ALJ Properly Assessed and Gave Appropriate Weight to the Opinions of Yost's Treating Physicians.

  According to 20 C.F.R. § 404.1527 (d), a treating physician's opinion must be accorded controlling weight if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and . . . not inconsistent with the other substantial evidence in [the] case record. . . ." 20 C.F.R. § 404.1527 (d) (2) (2005). If the treating physician's opinion is not given controlling weight, the following factors are applied in determining what weight to give the opinion: (1) the length of the treatment relationship and the frequency of examination, (2) the nature and extent of the treatment relationship, (3) the supportability of the opinion, (4) the consistency of the opinion with the record as a whole, (5) the specialization of the treating physicican, and (6) any other factors brought to the attention of the ALJ which tend to support or contradict the opinion. Id. § 404.1527 (d) (2) (i)-(ii), (d) (3)-(6).

  Opinions of treating physicians may only be rejected under certain circumstances. See Batson v. Comm'r of the Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). "Cases in [the Ninth Circuit] distinguish among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians)." Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).

  The standard for determining whether an ALJ to properly rejected the opinion of a treating physician varies. If the treating doctor's opinion is not contradicted by another physician, the ALJ must give clear and convincing reasons for rejecting it. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (holding ALJ must give clear and convincing reasons for rejecting the uncontroverted opinion of a treating physician); see also Lester, 81 F.3d at 830.

  On the other hand, if the treating physician's opinion is contradicted, "[t]he ALJ must give specific, legitimate reasons for disregarding the opinion of the treating physician.'" Batson, 359 F.3d at 1195 (quoting Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992).

  Plaintiff contends Judge Valentino failed to consider and give appropriate weight to the opinions of treating physicians Drs. Spencer, Pavlinac, Guerena, and Connolly. (Pl.'s Mem. 17-21.) Yost argues all four of these treating physicians found Plaintiff suffered from severe impairments beginning in early 2000 which were disabling within the meaning of the Act. (Id. at 18-19.)

  Judge Valentino accepted the treating physicians' diagnoses and found that the medical evidence indicates Yost has the following severe impairments: "ulcerative colitis, interstitial [cystitis], frequency [of urination] and a depressive disorder. . . ." (Admin. R. at 16.) However, whether an individual is disabled under the Act is an administrative finding, not a medical one. See 20 C.F.R. § 404.1527 (e) (1) (2005). The ALJ found Plaintiff's impairments were severe, but they did not meet or equal the listing requirements in 20 C.F.R. part 404, Appendix 1, Subpart P. (Admin. R. at 16-17.)

  Judge Valentino also accepted the treating physicians' opinions (and disagreed with agency physicians) that Yost "is unable to perform any of his past relevant work." (Id. at 18-19, 21.) However, the inquiry does not end there because, as the ALJ specifically noted, the Social Security Administration considers whether a claimant can perform other work. (Id. at 18.)

  1. Physical Condition

  Judge Valentino gave controlling weight to the opinions of treating physicians Dr. Connolly and Dr. Guerena. (Id. at 16.) The ALJ accepted Dr. Connolly's diagnosis of ulcerative colitis and Dr. Guerena's diagnosis of interstitial cystitis. (Id.) Judge Valentino also accepted the treating physicians' opinions that Plaintiff "is unable to perform any of his past relevant work." (Id. at 18-19, 21.) Dr. Connolly and Dr. Guerena did not indicate that Yost could not perform any work, just that he could not return to his former job as a trial attorney. (Id. at 18.) Plaintiff's assertion that Drs. Connolly and Guerena found him completely disabled from all work is not supported by the record.

  Although Judge Valentino accepted the diagnoses of ulcerative colitis and interstitial cystitis, he properly exercised his discretion in making an administrative finding of nondisability on the basis that Plaintiff "can perform medium work [other than his past work] that is less stressful and work that is in close proximity to a restroom." (Id. at 19.)

  2. Mental Condition

  Judge Valentino wrote that "[u]pon reviewing all of the evidence of record, the undersigned . . . concludes the claimant is not disabled within the meaning of the Social Security Act." (Id. at 15.) The ALJ is not required to discuss each item of evidence, but the record should indicate that all evidence presented was considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000); Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).

  Although the ALJ did not specifically refer to or adopt the opinions of nonexamining psychiatrists that contradicted those of Drs. Spencer and Pavlinac; contradicting opinions were contained within the record. (Id. at 119-133, 192, 217-41 (finding Yost's impairments not severe — Dr. Hurwitz, agreeing with SSA's initial decision to deny benefits — Dr. Gross, and finding that Yost has a "slight" disability — Dr. Zink.) Thus, Judge Valentino was required to give specific, legitimate reasons, supported by substantial evidence in the record, for disregarding the contradicted opinions of treating physicians Dr. Spencer and Dr. Pavlinac. See Batson, 359 F.3d at 1195; Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001).

  The ALJ did not completely reject the opinions of Yost's treating therapist, Edward G. Spencer, Ph.D., and his psychiatrist, Dr. Dennis M. Pavlinac, but he gave the opinions "little weight." (Admin. R. at 17.) Judge Valentino specifically found Dr. Spencer and Dr. Pavlinac reported an exaggerated GAF of thirty-five to forty. (Id.) Their evaluations were conducted on September 4 and 27, 2001, (Dr. Pavlinac) and September 16, 2001, (Dr. Spencer). (Id. at 118, 151-53.) However, during the period from October 11, 2002, through January 31, 2003, Spencer assessed Yost's current GAF at fifty-five and his highest for the year at sixty. (Id. at 258-67.) "A GAF score represents a clinicians judgment of an individual's overall level of functioning. . . . A GAF rating of 55 indicates a `moderate' impairment in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers)." See King v. Barnhart, 372 F. Supp. 2d 932, 939 n. 7 (S.D. Tex. 2005).

   The ALJ noted that Dr. Pavlinac assessed Plaintiff as suffering from moderate to severe major depression, which was, in Judge Valentino's opinion, inconsistent with the doctor's clinical findings that Yost was alert and oriented, had intact memory, normal thought processes, and logical and coherent thinking. (Id. at 17-18.) This is not a complete picture of Dr. Pavlinac's findings. The doctor also noted Yost's thinking remained "colored by his very pessimistic and depressive thoughts." (Id. at 153.) In addition, Plaintiff had suicidal ideation as well as a moderate to severely depressed mood. (Id.)

   Another inconsistency noted by the ALJ was the discrepancy between Dr. Pavlinac's opinion that Plaintiff's condition was guarded based on Yost's medical condition and Dr. Pavlinac's statement that it was a little early to tell how successful the trial of medication would be. (Id. at 18.) However, the medications Dr. Pavlinac prescribed for Plaintiff in September 2001, Effexor and Klonopin, were continued through November 2002. (Id. at 153, 270.) Over one year later, on November 26, 2002, Dr. Pavlinac still found Yost moderately depressed with an anxious mood. (Id. at 270.)

   The ALJ found Dr. Spencer's conclusion that no relationship existed between the level of Plaintiff's depression and his alcohol use was not entirely credible; Dr. Spencer believed that Yost's drinking three to five mixed drinks a day for twenty to twenty-one months showed alcohol dependence. (Id. at 18.) Nevertheless, the doctor concluded that a reduction in alcohol intake did not affect Yost's level of depression (id. at 169), but it did reduce his level of anxiety (id.).

   Judge Valentino contrasted Dr. Spencer's November 30, 2001, conclusion that no relationship existed between Plaintiff's alcohol use and his depression with a September 24, 2001, letter Dr. Spencer wrote to Dr. Guerena asking for assistance in encouraging Yost to engage in total abstinence from alcohol and to pursue vocational rehabilitation and drug treatment. (Admin. R. at 18, 169, 176.) Dr. Spencer opined that if Plaintiff were forced to be accountable in these areas, he could reach a decent level of functioning. (Id. at 177.) The ALJ found this conclusion inconsistent with Dr. Spencer's opinion that Yost was totally disabled. (See Id.)

   There was conflicting evidence on the extent and effect of Yost's depression. "If the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ." Tackett v. Apfel, 180 F.3d at 1098 (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992). Nevertheless, the Court must consider the record as a whole. Id. Here, that evidence includes the March 28, 2002, and April 3, 2002, medical reports prepared by Stuart Kramer, M.D., and Robert Zink, Ph.D., in connection with Yost's workers' compensation claim. (Id. at 217-39.)

   In his report, Dr. Zink noted that Yost stated that he could not perform as a trial attorney and would have difficulty being a paralegal because "he is not skilled in typing and not skilled in clerical or computer skills." (Id. at 224.) Dr. Zink completed a work function impairment form and found Yost slightly to moderately impaired for one category and very slightly to slightly impaired for seven other work functions. (Id. at 239.) Still, he wrote that "[c]urrent psychological clinical examination and psychological testing indicates that Mr. Yost likely suffers significant residuals of a major depression with associated anxiety and psychophysiologic tension." (Id. at 233.)

   In a contemporaneous report dated March 28, 2002, Dr. Stuart Kramer concluded that Plaintiff's condition prevented him from "performing his customary work activity as a trial attorney." (Id. at 214.) The doctor felt that Yost's emotional and physical problems, combined with "his advanced age of 59" precluded him from competing in the labor market. (Id.)

   Judge Valentino accorded little weight to the opinions of treating physicians Dr. Spencer and Dr. Pavlinac because of perceived inconsistencies within their reports (including opinions of disability juxtaposed with good prognoses for recovery). The ALJ gave specific and seemingly legitimate reasons for rejecting the treating physicians' opinions, but the ALJ's reasons are not supported by substantial evidence in the record.

   "Because the ALJ failed to provide legally sufficient reasons for rejecting [Yost's] . . . treating physicians' opinions, we credit the evidence as true." Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004). Even so, an award of benefits does not automatically follow. First, the conclusions of Drs. Pavlinac and Spencer are medical opinions, not legal conclusions. Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000). Next, the vocational expert found that with severe depression and a GAF between thirty-five to forty, there were no jobs available for Yost. (Admin. R. at 321.) However, even Yost's treating physician, Dr. Spencer, found that Yost's GAF had improved to fifty-five to sixty. (Id. at 258, 260, 263.) Consequently, there was no testimony from the vocational expert, considering the improved GAF, that Yost is able to perform work in the national economy, so a remand for further proceedings is appropriate. Harman v. Apfel, 211 F.3d at 1180. Although this conclusion should resolve this matter, the Court will address Yost's remaining contentions. B. Plaintiff's Argument That the ALJ Erred in Relying on the Testimony of the Medical Expert to Conclude That Yost Could Sustain Substantial Gainful Activity Is Without Merit.

   Plaintiff contends Judge Valentino relied in error on the testimony of Dr. Klein, who is neither a psychologist nor psychiatrist, to conclude that Yost could perform a significant range of medium work. (Pl.'s Mem. 21-23.) Plaintiff also argues that Dr. Klein, an internist and cardiologist, failed to consider and acknowledge the medical records of Dr. Guerena and Dr. Connolly regarding Yost's colitis and cystitis and the mental health records of Dr. Spencer, a psychologist, and Dr. Pavlinac, a psychiatrist, regarding Plaintiff's depressive disorder. (Id. at 22.) In passing, Yost claims substantial evidence does not support the ALJ's decision because Judge Valentino did not have "necessary information." (Id. at 21.) Plaintiff does not identify the necessary information that was missing. (Id.)

   Defendant asserts substantial record evidence supports the ALJ's decision, and Judge Valentino properly relied on Dr. Klein's expert testimony that Yost "retained the ability to perform medium work that did not require climbing, but allowed close access to a bathroom. . . ." (Def.'s Mem. 11.)

   1. Development of the Record

   In Social Security cases, "[t]he ALJ always has a `special duty to fully and fairly develop the record and to assure that the claimant's interests are considered . . . even when the claimant is represented by counsel.'" Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003) (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) (citations omitted)). Courts recognize that the ALJ must further develop the record when there is "[a]mbiguous evidence, or the ALJ[] . . . find[s] that the record is inadequate to allow for proper evaluation of the evidence. . . ." Id.; see also Oliver v. Apfel, No. C 98-4124 MJJ, 1999 WL 760531, at *2 (N.D. Cal. Sept. 22, 1999) (citing Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)) ("The ALJ's obligation to develop the record arises only where the ALJ finds the record insufficient to properly evaluate the evidence.").

   Social Security regulations provide that if the evidence received from a claimant's treating physician or other medical source is inadequate for the SSA to determine whether the claimant is disabled, the SSA will obtain additional information. 20 C.F.R. § 416.912 (e)-(f) (2005). The SSA will either recontact medical sources that have already examined the claimant or the claimant's records or ask the claimant to attend one or more consultative examinations with SSA physicians. Id. The evidence received from existing medical sources must be inadequate before the SSA will make an effort to seek additional evidence or clarification. Id. Whether the evidence is inadequate is decided by the ALJ in light of the record as a whole. See Tonapetyan, 242 F.3d at 1150.

   When he made his decision, Judge Valentino had the opinions of Yost's physicians, Drs. Connolly, Guerena, Spencer, and Pavlinac, in addition to the opinions of several examining and nonexamining physicians. (See Admin. R. at 115-35, 143-274.) Additionally, although the ALJ did not have copies of the colonoscopies or cystoscopies performed on Yost, the ALJ did not question their existence, which was reflected in the lengthy qualified medical evaluation report of Dr. Kramer. (Id. at 203, 207.) Moreover, Dr. Klein, the medical expert at the administrative hearing, testified that "whether [Plaintiff] has ulcerative colitis or interstitial cystitis his RFC [residual functional capacity] would remain the same." (Id. at 318.) According to Dr. Klein, even with these conditions, Yost's only limitation would still be proximity to a bathroom. (Id.) The medical evidence was adequate for Judge Valentino to make a determination regarding whether Plaintiff was disabled. Because the evidence was adequate and the result would have been the same regardless of other evidence, the ALJ was not under a duty to obtain additional medical records or other "necessary information." (See Pl.'s Mem. 21); 20 C.F.R. § 416.912 (e)-(f); Tonapetyan, 242 F.3d at 1150.

   In addition, Dr. Klein's opinion was not ambiguous or equivocal. If a physician's opinion is equivocal or ambiguous, the ALJ has a duty to further develop the record and seek additional evidence. Tonapetyan, 242 F.3d at 1150. Dr. Klein's opinion on Yost's residual functional capacity was clear. (See Admin. R. at 318.) The doctor concluded that Plaintiff would be able to perform work at the moderate exertional level, with sitting, standing, and walking limited to six hours of an eight-hour workday with close proximity to a restroom. (Id. at 316.)

   Judge Valentino never expressed a need for additional records. In fact, he accepted the diagnoses of colitis and cystitis. (Id. at 16.) Because the record was adequate, sufficient, and clear, the ALJ had no duty to seek additional medical information to clarify that opinion. 2. Dr. Klein's Opinion Regarding Colitis and Cystitis

   Yost also argues that Dr. Klein improperly formed his opinion without regard to Dr. Guerena's September 16, 2002, March 10, 2003, and July 2, 2003, reports, which state that Plaintiff suffers from chronic interstitial cystitis that shows no improvement with medication. (Pl.'s Mem. 21-22.) Furthermore, Yost contends that Dr. Klein failed to consider Dr. Connolly's note that he had been treating Plaintiff for colitis since August 22, 2000, and the doctor's opinion that "the colitis was stress related and resulted in a permanent disability from high stress work as a trial attorney." (Id. at 22.)

   Although Dr. Klein testified that he found no records substantiating the diagnoses of colitis and interstitial cystitis, Judge Valentino did not rely on that portion of the expert's testimony. (Admin. R. at 314-15.) Instead, he accepted those diagnoses and found that they were severe impairments under the Social Security Act. (Id. at 16.) Furthermore, Dr. Klein stated Yost's residual functional capacity would have been the same whether or not the diagnoses were substantiated. (Id. at 318.) Therefore, the absence of substantiating medical records did not affect the ALJ's decision.

   3. Omission of Depressive Disorder from Dr. Klein's Opinion

   Dr. Klein never offered an opinion regarding Plaintiff's depression because it was outside the scope of his medical speciality of internal medicine. (Admin. R. at 315.) Therefore, there was no reason for Dr. Klein to consider Yost's mental health records from Dr. Spencer or Dr. Pavlinac. Because Dr. Klein did not offer an opinion on Plaintiff's depression, Yost's contention that the ALJ relied in error on Dr. Klein's testimony with regard to Plaintiff's depression is without merit.

   Judge Valentino did not reduce the weight given to Yost's mental health doctors' opinions because of the testimony of Dr. Klein. (See id at 17.) Rather, the ALJ accorded little weight to the opinions of Dr. Spencer and Dr. Pavlinac for other reasons. (Id. at 17-18.)

   C. The Matter Should Be Remanded for Further Proceedings.

   The ALJ failed to give specific and legitimate reasons supported by substantial evidence in the record for rejecting the opinions of Drs. Spencer and Pavlinac. Therefore, his decision should be reversed. A remand is necessary for vocational expert testimony stating whether a person with the limitations established by the improperly rejected evidence is able to perform any work in the national economy. See Harman v. Apfel, 211 F.3d at 1180. However, Plaintiff has failed to show a basis for a remand to a different administrative law judge.


   For the reasons set forth above, Plaintiff's Motion for Summary Judgment should be GRANTED in part, and Defendant's Cross-Motion for Summary Judgment should be DENIED. Plaintiff's request for an award of attorney's fees should also be GRANTED.

   This Report and Recommendation will be submitted to the United States District Court judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b) (1). Any party may file written objections with the Court and serve a copy on all parties on or before January 20, 2006. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be served and filed on or before January 31, 2006. The parties are advised that failure to file objections within the specified time may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).



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