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Carter v. Astrue


August 28, 2008


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


Plaintiff is represented by counsel and is proceeding in forma pauperis with an action seeking judicial review of a final decision of the Commissioner of Social Security (Commissioner) denying Plaintiff's application for a period of disability, disability insurance benefits (DIB), and supplemental security income (SSI) benefits under Titles II and XVI of the Social Security Act (Act). The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C.§ 636(b) and Local Rule 72-302(c)(15). The matter is currently before the Court on the parties' briefs, which have been submitted without oral argument to the Honorable Sandra M. Snyder, United States Magistrate Judge.

I. Procedural History

Plaintiff, who was born in August 1967 and who was thirty-eight years old on the date of the decision in question, previously received DIB and SSI benefits, but it was determined that her entitlement to DIB and eligibility for SSI ended on July 31, 2002, the end of the second calendar month after the month in which disability ceased. (A.R. 27, 29.)*fn1

On December 3, 2003, Plaintiff filed applications for DIB and SSI, alleging disability as of September 5, 2003, due to pain in the hips, legs, and back, and later due to diabetes and depression. (A.R. 83-85, 392-95, 28.) After Plaintiff's claim was denied initially and on reconsideration, Plaintiff requested, and appeared at, a hearing before the Honorable William C. Thompson, Jr., Administrative Law Judge (ALJ) of the Social Security Administration (SSA), on February 14, 2006. Plaintiff appeared with an attorney and testified. (A.R. 27.) On June 13, 2006, the ALJ denied Plaintiff's application for benefits. (Id. at 27-38.) Plaintiff appealed the ALJ's decision to the Appeals Council. After the Appeals Council denied Plaintiff's request for review on November 3, 2006, Plaintiff filed the complaint in this action on January 6, 2007. (Id. at 6-8.) Briefing commenced on December 17, 2007, and was completed with the filing on January 28, 2008, of Plaintiff's reply to Defendant's opposition.

II. Standard and Scope of Review

Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, the Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The Court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion; it may not simply isolate a portion of evidence that supports the decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).

It is immaterial that the evidence would support a finding contrary to that reached by the Commissioner; the determination of the Commissioner as to a factual matter will stand if supported by substantial evidence because it is the Commissioner's job, and not the Court's, to resolve conflicts in the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 (9th Cir. 1975).

In weighing the evidence and making findings, the Commissioner must apply the proper legal standards. Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must review the whole record and uphold the Commissioner's determination that the claimant is not disabled if the Commissioner applied the proper legal standards, and if the Commissioner's findings are supported by substantial evidence.

See, Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If the Court concludes that the ALJ did not use the proper legal standard, the matter will be remanded to permit application of the appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th Cir. 1987).

III. Disability

In order to qualify for benefits, a claimant must establish that she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(i), 1382c(a)(3)(A). A claimant must demonstrate a physical or mental impairment of such severity that the claimant is not only unable to do the claimant's previous work, but cannot, considering age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. 1382c(a)(3)(B); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The burden of establishing a disability is initially on the claimant, who must prove that the claimant is unable to return to his or her former type of work; the burden then shifts to the Commissioner to identify other jobs that the claimant is capable of performing considering the claimant's residual functional capacity, as well as her age, education and last fifteen years of work experience. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

The regulations provide that the ALJ must make specific sequential determinations in the process of evaluating a disability: 1) whether the applicant engaged in substantial gainful activity since the alleged date of the onset of the impairment, 20 C.F.R. § 404.1520 (1997);*fn2 2) whether solely on the basis of the medical evidence the claimed impairment is severe, that is, of a magnitude sufficient to limit significantly the individual's physical or mental ability to do basic work activities, 20 C.F.R. § 404.1520(c); 3) whether solely on the basis of medical evidence the impairment equals or exceeds in severity certain impairments described in Appendix I of the regulations, 20 C.F.R. § 404.1520(d); 4) whether the applicant has sufficient residual functional capacity, defined as what an individual can still do despite limitations, to perform the applicant's past work, 20 C.F.R. §§ 404.1520(e), 404.1545(a); and 5) whether on the basis of the applicant's age, education, work experience, and residual functional capacity, the applicant can perform any other gainful and substantial work within the economy, 20 C.F.R. § 404.1520(f).

With respect to SSI, the five-step evaluation process is essentially the same. See 20 C.F.R. § 416.920.

Here, the ALJ found that Plaintiff had severe impairments of status post-pin placement in the hips and obesity. (Tr. 37.) She did not have an impairment or combination of impairments that met or equaled the criteria in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the Medical Listings). (Tr. 37.) She retained the ability to perform a wide range of light work. Specifically, the ALJ found that she had the residual functional capacity (RFC) to lift and carry twenty pounds occasionally and ten pounds frequently, stand and walk for six hours in an eight hour workday, but could not climb ladders, ropes, or scaffolds, could not operate foot controls, and must avoid heights and dangerous moving machinery. (Tr. 37.) Using Rules 202.21 and 202.22 as a framework for decision, the ALJ found that she was capable of performing other work within the national economy, namely, cashier, assembler, and laundry worker, and thus was not disabled. (Tr. 37, 23.)

IV. Summary of Medical Records

In October 2002, Dr. Joy Farley of the Health Services Agency examined Plaintiff and diagnosed morbid obesity; she recommended weight loss and that Plaintiff look into the YMCA for aqua aerobics. (A.R. 236.) In December 2002, Dr. Farley continued medications and recommended an exercise program, keeping a food diary, and physical and occupational therapy. (A.R. 234.)

In March 2003, Plaintiff experienced pain from her hip condition, and physical therapy had exacerbated it. Treating orthopedist Dr. Pistel examined Plaintiff as well as x-rays that revealed pins in place from a previous surgery with heterotopic bone over the proximal femur on the lateral side covering the pins completely, without any pin protrusion or evidence of chondrolysis, flattening of the head, or destructive arthritis. (A.R. 319.) At age eleven, Plaintiff had been diagnosed with a slipped capital femoral epiphysis, which was treated with pinning in both hips in 1976; in 1996, an attempt to retrieve the pins was made, but it was unsuccessful and brought no relief. Plaintiff had pain to palpation in the lumbosacral region, point-tenderness at the sacroiliac joint, and limited spinal motion, side bending, and rotation because of pain. She had very limited range of motion in the hip. There was no examination of the sciatic nerve because it was not tolerated; she did not have groin pain with full range of motion, and there was no crepitus. (A.R. 319.) He informed Plaintiff that the potential causes of her low back and hip pain were the previous hip surgery, which could have changed her joint mechanics, and her abdominal girth, which was causing the spine to go into lordosis and a pain pattern; he recommended epidural anesthesia to start with followed by a careful diet and physical therapy program, including aqua therapy. He stated that he had made it very clear to her that he thought that a very important aspect of her treatment would be weight loss in order to improve her symptoms for both her low back but also for prevention of total hip arthroplasty in both hips. His impression was status post SCIFE with mechanical low back pain and facet arthritis (A.R. 319.)

In May 2003, Dr. Pistel examined Plaintiff, who reported that when she was in hydrotherapy, her symptoms abated; Dr. Pistel concluded that this showed that the vast majority of her problems were low back-related, and he recommended back strengthening, fitness program, continued medication, and exercise. (A.R. 318.) Plaintiff reported to Dr. Farley in May 2003 that she had started pool therapy after having seen Dr. Pistel, and she felt better; Plaintiff had obtained a TENS unit three months earlier. (A.R. 217.)

Plaintiff reported increasing hip pain and continued back pain in July 2003, and Dr. Pistel directed Plaintiff to continue with physical therapy to improve the back, and to avoid hip replacement as long as possible. (A.R. 317)

On September 22, 2003, Dr. Pistel saw Plaintiff again after an epidural injection had only provided Plaintiff with short, minimal relief. Dr. Pistel reported:

I feel that her body habitues and size will continue to contribute to chronic low back and hip pain, although her degenerative hip problem as a young woman will continue to bother her.

I have thusly recommended that prior to any consideration for a total hip replacement at her young age and size, that we get a second opinion. I will ask Dr. Rajagopalan to see her to give her his opinion regarding the time frame of hip replacement. I suggested to the patient that over the long-term, her success diminishing symptoms will lye (sic) in weight reduction and management of this as well as conditioning. She does seem to get good relief when she does aqua therapy and that should continue also. (A.R. 316.)

In October 2003, Dr. Bal M. Rajagopalan reviewed Plaintiff in clinic and opined that she had hip pain bilaterally with mild degenerative changes, subsequent to her size and inflammation from her load of her hip; because the hips were a very concentric joint, a little bit of changes with increased load would cause significant symptoms. Plaintiff would be a candidate for a hip replacement, but at the time of the clinic, treatment by injections would be therapeutic and diagnostic. (A.R. 315.)

Dr. Farley discussed a food and exercise diary with Plaintiff in October 2003. (A.R. 213.) In December 2003, Dr. Farley noted that Plaintiff's disability was pending appeal; the doctor encouraged weight loss and continuing pool therapy three time a week; she noted that obesity was contributing to Plaintiff's back pain and arthritis, and that Plaintiff had lost weight (twenty pounds) for the first visit, and she was encouraged to continue. (A.R. 212.)

On November 7, 2003, Dr. Pistel wrote to the Stanislaus Orthopaedic and Sports Medicine Clinic regarding Plaintiff. He wrote that she had "significant arthritic change coccymagna" as a result of slipped capital epiphysis; she would need a total joint replacement but should wait as long as possible because of her young age (thirty-six); he opined that due to her medical condition, any type of activity or work would be impossible for her. (A.R. 311.)

In January 2004, Dr. Pistel noted that Plaintiff had not gotten much relief from the injection of her hip. He encouraged Plaintiff to continue her exercises to delay a total hip arthroplasty as long as possible. (A.R. 309). Plaintiff continued to try to lose weight in April 2004. (A.R. 308.)

In April 2004, Dr. Farley recommended enrolling Plaintiff again in the obesity class at Paradise and continuing pool exercises. (A.R. 207.) Dr. Pistel noted that Plaintiff continued to try to lose weight. (A.R. 308.) In May 2004, Dr. Pistel noted there was no bone-on-bone arthritis of the hip; prior to total hip replacement, Dr. Pistel recommended surgery to attempt to remove the hardware. (A.R. 307.)

Plaintiff, who was taking medication and was prescribed physical therapy, was referred to the pain clinic and was examined in June 2004. An x-ray revealed normal hip joint space, bone spurs over pins on the left side with a protruding pin and the appearance of some broken pieces. Plaintiff reported doing water therapy since 1997 about three times a week, which she reported was somewhat helpful. (A.R. 349.) The diagnosis was chronic hip pain likely worsened secondary to bone spurs from protruding pins. (A.R. 350.) Medications and physical therapy were to continue, and surgery was scheduled. (A.R. 349-50.)

In December 2004, Dr. Pistel reported that surgery had shown that Plaintiff's three pins were deeply embedded in the bone. The portion of the pins that protruded from the bone was removed; the remainder of the pins had broken deep inside the bone, and bone spurs that were present were smoothed. Dr. Pistel prescribed physical therapy. (A.R. 348, 371.)

In February 2005, Dr. Pistel noted Plaintiff's continuing complaints of pain; he recommended continuing exercise and lifestyle change in order to lose weight, and weaning her off narcotics and muscle relaxants during the day and pain medication at night over the next several months. He did not feel that she would need hip replacement surgery. (A.R. 347.) During Plaintiff's February 2005 visit to the pain clinic, she reported that she had been doing pool therapy as physical therapy, but she had stopped in October 2004. (A.R. 345.) She complained of constant low back pain that radiated down both legs. (Id.) The doctors recommended continuing pool therapy and working out in the gym, stretches, aerobic exercise, increasing activity, and losing weight. (A.R. 346.)

In March 2005, Dr. Pistel recommended continuing her exercise program and talking with another doctor about gastric bypass as a way to help. (A.R. 340.) Notes from Plaintiff's visit to the pain clinic that month reflect that Plaintiff complained of worsening pain but reported an increased level of activity or exercise consisting of one half hour of exercise two or three times a week in an arthritis water class, with one-half hour of floating. Her exercise was walking, squats, and abductions in the water, and floating in the water; she did no exercise in the gym or with equipment. Her compliance was rated as fair and average; she was instructed as to motivation and given a home program in which she was to perform step-up's, increased land exercise, and stretching. (A.R. 344.)

In April 2005, EMG studies of both Plaintiff's lower extremities, performed to evaluate possible peripheral neuropathy or lumbosacral radiculopathy, were normal. (A.R. 341-43.) Plaintiff reported that the EMG had revealed spinal stenosis; Dr. Pistel opined that Plaintiff presented a clinical picture that was consistent, so Plaintiff was referred to Dr. Gadgil, and Dr. Pistel ordered an MRI and a neurosurgery referral. (A.R. 339.)

In May 2005 Dr. Pistel recommended continuing to exercise and lose weight, and injections to delineate the pain. (A.R. 335.) He treated her with a forearm strap, physical therapy, and rest for pain at the medial epicondyle. (A.R. 338.) He recommended that she progress out of the water exercises, and the plan was to taper her slowly off her Elavil and possibly increase Flexeril; the plan also included continuing a weight loss diet (Plaintiff weighed 330 pounds). (A.R. 337.)

At the pain clinic in May 2005, Plaintiff reported that her pain had increased and her activity and exercise level were worse; she was doing water exercise; unspecified "P.T." that she did at home did not help. A physical exam revealed tenderness over the trochanter and reduced movement of the back with possible poor effort. The summary "REPORT CARD" stated that Plaintiff was difficult to motivate, dependent, had a passive attitude, was on several pain medications, and made poor progress. (A.R. 337.)

In July 2005, Dr. Pistel advised diagnostic and therapeutic injections under fluoroscopy to help delineate Plaintiff's hip pain, as well as continuing trying to exercise and lose weight, which would also help delineate whether the pain was coming from the low back or from the hip. Dr. Pistel also injected both hips and the greater trochanteric region and right elbow, and the plan was to continue physical therapy. (A.R. 335.) He recommended an intra-articular hip injection bilaterally. (A.R. 334.) He injected Marcaine and Depo-Medrol into both hips on August 4, 2005. (A.R. 377.) His postoperative diagnosis was bilateral hip pain with possible degenerative joint disease. (A.R. 375.) Plaintiff was discharged with instructions to return to previous activities gradually. (A.R. 373.)

A note reflects studies taken during surgery on August 4, 2005, including a study of one view of the right hip, reflected retained hardware, with a needle overlying the left femoral head, and multiple pieces of hardware. The impression was postoperative changes, and needle over the femoral head. (A.R. 380.) A study of the left hip showed retained hardware in surgery and a needle and multiple pins in place; there was no change from the prior exam of December 2004. (A.R. 379.)

On August 11, 2005, Plaintiff reported to the pain clinic that her pain was constant and was worse, and her exercise or activity level was also worse, with one block of walking causing bilateral pain; she stretched five to ten times a day, but it hurt worse; she stopped physical therapy and swimming three weeks earlier; she had been going three times a week to physical therapy, but it brought no relief. There was tenderness over the lower back, worse on the left, right and left buttocks were painful when palpated, hip flexion was thirty degrees left and forty-five degrees right. The plan was to resume swimming and walking and stretching at home with gradual increase in intensity and frequency. (A.R. 333.)

An MRI taken August 11, 2005, revealed a small central bulge at the level of L5-S1 that caused mild compression of the thecal sac without evidence of nerve root compression, and with associated mild facet joint arthropathy (A.R. 333, 387.)

In August 2005, Plaintiff's physical therapist reported that with respect to Plaintiff's prescription from Dr. Pistel for therapy for back and bilateral hip pain, Plaintiff had only attended twice (two consecutive appointments in July 2005), and she stated that she was waiting to see what her doctor would tell her to do in response to therapy. (A.R. 336.)

On September 27, 2005, Plaintiff was evaluated at the Neurosurgical Clinic of the Stanislaus County Health Services Agency by Dr. Dikran Bairamian. (A.R. 328-39.) Dr. Bairamian found unlimited straight leg raising, tenderness of the lower lumbar region, hip rotation uncomfortable on the left, and 5/5 motor exam with normal sensory exam. X-rays showed minimal degenerative changes at L5-S1; he saw no cauda equina or root compression. His impression was back/bilateral lower extremity pain. He told Plaintiff that surgical intervention on the spine was not indicated. She was referred for a course in physical therapy in addition to an epidural block; she was advised to lose weight and to follow up with her primary care physician. (A.R. 329.)

At the pain clinic in October 2005, Plaintiff reported worse pain and activity level; she was not doing the home exercise program, anticipated restarting, and was scared about restarting because of prior episodes and pins extruding after physical therapy. She took Methadone, Elavil, Flexeril, Vasotec, Paxintine, and Glucophage. The physical exam revealed reduced range of motion at the waist, tenderness to palpation diffusely throughout back, arms, and legs, slow gait but no limp, a minimal squat, twenty degrees flexion, ten degrees lateral bending, and five degrees extension. The TENS unit helped somewhat with pain in the back, buttocks, and the inside of the legs. Plaintiff's sleep was poor despite her dose of 120-150 milligrams of Elavil. Plaintiff was difficult to motivate. Physical therapy (pool exercises/therapy three times a week) was scheduled, and Plaintiff was advised to attend, but it was not clear that she would go. She was encouraged to continue to try to reduce her dose of Elavil and to attend weight loss class. (A.R. 327.)

In December, Dr. Pistel saw Plaintiff, who complained of continued hip pain; Dr. Pistel planned that before considering hip replacement surgery, a second trial injection should be given. He would discuss a new hip in the following year. (A.R. 325.)

Plaintiff visited the emergency department of Doctor's Medical Center on December 22, 2005, for bilateral hip pain. (A.R. 365-66.) Dr. Robert E. Wolfensperger examined Plaintiff and found full range of motion at both hips, well-healed bilateral lateral scars, and no evidence of thrombophlebitis, cellulitis, or abscess formations. He noted that the x-rays showed multiple pins at both hips with normal bony prominences; one of the four pins at the left hip was bent at the tip and the other had several small chips out of it, but there was no foreign material in the wound or any free-floating metallic foreign bodies. The impression was bilateral hip pain with multiple pins, and medication. (Id.) Dr. Matthew Lynn reported that a study of Plaintiff's left hip and pelvis showed multiple pins fixing bilateral femoral neck fractures; no acute fractures were seen; there was some minimal osteoarthritic change in the hips, but no lytic or destructive lesions were seen. (A.R. 367.)

In January 2006, Plaintiff weighed 315 pounds. (A.R. 324.) Dr. Pistel stated that Plaintiff had bilateral hip arthritis as a result of her Legg-Calve-Perthes,*fn3 and she would have a bilateral hip injection under fluoroscopy. (A.R. 323.) The injection was performed on January 26, 2006. (A.R. 358-59.) Dr. Pistel noted that three to six months before, Plaintiff had had a positive response to injection of the hips and was there for a repeat injection. (A.R. 356.) Plaintiff exhibited pain with range of motion and in the groin. (Id.)

Two weeks after the hearing, on February 20, 2006, Dr. Pistel opined*fn4 that due to multiple musculoskeletal problems, continued pain in both legs and low back, with significant arthritic change "coccymagna" resulting after slipped capital epiphysis, Plaintiff was precluded from performing any full-time work at any exertional level, including sedentary work; she could sit about an hour and stand and/or walk thirty minutes total. He opined that she was really disabled. (A.R. 390.)

Also after the hearing, on February 23, 2006, Dr. Gadgil, Plaintiff's primary physician, opined that since September 2004, Plaintiff was precluded from performing any full-time work at any exertional level, including sedentary work, due to hip pain and lower back pain that radiated bilaterally to the lower extremities due to slipped capital femoral epiphysis, along with a small disc bulge at L5-S1 as reflected by the August 2005 MRI; she could sit thirty minutes to an hour, and stand or walk fifteen to twenty minutes; periodically she needed to elevate her legs and lie down to help with her back pain for two hours; she was also unable to squat, lift her arms above her head, and constantly needed to change position. (A.R. 391.)

Exhibits presented to the Appeals Council reflect later treatment of Plaintiff.

A partial copy of a letter to Plaintiff's doctor from UCSF Medical Center dated March 29, 2006, and a copy of a letter from May 2006 from Dr. Vedat Deviren, referred to examination of Plaintiff, who weighed 310 pounds and reported that her three injections into the hips had no particular benefit; she had tried physical therapy and other treatment but believed her condition to be worsening. She experienced severe pain (ten on a scale of one to ten) in the hips, the groin, and over the side that was present with all activities and positions. She could walk only from her bed to her chair without pain. She experienced stiffness, numbness, swelling, and weakness, and she had a moderate limp. She was morbidly obese. She took Methadone for pain control. Physical examination revealed normal limb alignment between hip and ankle, normal neurovascular status in both extremities distally when sitting; painful straight leg raising in the supine position; and limited range of motion of the hips with pain. The knees were in apparent valgus. Examination of the right hip showed flexion to ninety degrees, extension of zero degrees, and internal rotation of zero degrees causing significant pain; external rotation was to forty degrees, abduction thirty, and adduction of twenty; examination of the left hip showed eighty-five degrees of flexion, zero degrees of extension, zero degrees of internal rotation accompanied by significant pain, forty degrees of external rotation, twenty-five degrees of abduction, and fifteen degrees of adduction, all accompanied by pain. (A.R. 404-07.) X-rays taken of both hips demonstrated reasonably well preserved joint spaces bilaterally and residuals of mild slipped femoral capital epiphysis with retained pins; early signs of impingement and osteophytosis on the right, and a possible early osteophyte at the superior border of the acetabulum; lateral views of the hips showed the pins to be within the femoral neck and head, and the hip joint spaces were fairly well maintained bilaterally. X-rays of the lumbosacral spine showed some degeneration of the L5-S1 disc space but otherwise decent alignment; a previous nuclear bone scan demonstrated focal increase at her bilateral sacroiliac joints and on the left side at L5-S1. The diagnosis was bilateral coccydynia status post-pinning for slipped femoral capital epiphysis as a child. The impression was that it was not clear whether the pain was due to arthritis of the hip joints, was coming from her spine, or had some other origin. (A.R. 405.) Dr. Deviren concluded that surgery would not be beneficial at that time, but weight loss and walking more, along with pain management, would benefit her. (A.R. 407.)

A report of a bone scan, with intravenous administration of TC-99m MDP, of the pelvis taken April 17, 2006, revealed no abnormal radiotracer activity in the femoral heads or other portions of the hip joints to suggest osteomyelitis; there was a small focus of uptake in the lower lumbar spine on the left at L5-S1, and a slight amount of uptake in the bilateral sacroiliac joints, possibly relative to degenerative disease. (A.R. 409.)

Dr. John Chase, a clinical instructor in the division of arthroplasty at the department of orthopedic surgery at UCSF, wrote on April 19, 2006, that a technetium bone scan performed on April 17, 2006, revealed no abnormalities in the hip joints, there was increased radiotracer uptake at L5-S1 on the left and in both sacroiliac joints that was probably related to degenerative disease, and a subtle fossa of activity in the lower anterior chest wall possibly at the costochondral junctions. It did not appear that Plaintiff's complaints were referable to her hip joints; they were more likely emanating from her spine and/or sacroiliac joints. She was referred to Dr. Deviren in the Spine Clinic at UCSF for evaluation and treatment; Plaintiff was not a candidate for arthroplasty of either hip despite her history, and there was no significant degree of osteoarthritis of either hip to suggest a need for surgery in the foreseeable future. Weight loss would be of value in prolonging the life of Plaintiff's hip joints. (A.R. 408.)

V. Res Judicata

Plaintiff argues that the ALJ erred in applying res judicata to the previous finding of non-disability because Plaintiff was not represented by counsel in the earlier hearing. The ALJ should have evaluated all the evidence de novo instead of applying a presumption of non-disability that Plaintiff had to overcome.

The Court agrees with Defendant that there was no improper application of general principles of res judicata. The Court has considered the governing legal principles. It is recognized that final findings of non-disability made by an administrative law judge require a claimant who reapplies to prove changed circumstances to overcome a presumption of continuing non-disability. Chavez v. Bowen, 844 F.2d at 693-94 (finding that a change in age status was a changed circumstance that precluded application of res judicata to a first ALJ's ultimate finding of non-disability, recognizing some res judicata consideration to the first ALJ's findings concerning RFC, education, and work experience, and remanding for determination of a factor [transferable work skills] needed to determine disability in light of the prior findings and the new advanced age factor). A finding of non-disability creates a presumption that the claimant is capable of substantial gainful employment which may be overcome if the claimant proves the existence of changed circumstances that would establish disability. Light v. Social Security Administration, 119 F.3d 789, 791-92 (9th Cir. 1997) (concluding that upon introducing evidence that a previous impairment had become increasingly severe, and evidence of diagnosis of a new impairment, either of which could have been a basis for a finding of disability either independently or when aggregated with all of the claimant's pre-existing infirmities, the applicant satisfied his burden of overcoming the presumption that he was capable of work).

In Lester v. Chater, 81 F.3d 821, 827-28 (9th Cir. 1996), the court stated that res judicata was not to be applied where the claimant was unrepresented by counsel at the time of the prior claim (citing Gregory v. Bowen, 844 F.2d 664, 666 (9th Cir. 1988)). There is no indication that the prior proceeding in Lester involved an unrepresented claimant; the court did not rely on the absence of counsel in the previous proceeding in determining that res judicata should not be applied, and it appears that at some stage of the proceedings, the applicant had counsel. Id. at 828, 832. Indeed, the court in Lester determined that res judicata should not apply because the claimant alleged a new impairment that was not raised or addressed in the earlier proceeding, and there was also an age change that affected application of the medical-vocational guidelines and the consideration of vocational factors. Id. at 828.

The court in Lester cited Gregory v. Bowen, 844 F.2d 664, 666 (9th Cir. 1988), where the question was whether a 1981 agency decision on an earlier application that rejected the claimant's application for benefits should be given res judicata effect. The court determined that the later ALJ's decision, rendered in the proceeding before it, to reopen the 1981 claim by considering on the merits the issue of the claimant's disability during the time covered by the 1981 decision "precludes agency reliance upon res judicata." Id. at 666. Further, the court stated that because the later application raised a new issue of psychological impairments, it would inappropriate to apply res judicata. Id. However, in discussing the doctrine of res judicata, the court noted that the claimant had not been represented by counsel when she filed the earlier claim, and thus the "rigid application of res judicata would be undesirable." Id. Again, as was the case in Lester, Gregory did not involve a firm holding that res judicata would not be applied because of lack of representation.

Although the Court is not aware of any affirmative holdings in this circuit applying res judicata where the claimant was previously unrepresented, the applications in Lester and Gregory are consistent with the overarching principles that the rules of collateral estoppel and res judicata are tempered by fairness and equity, and are qualified or rejected when their application would contravene an overriding public policy or result in manifest injustice. Thompson v. Schweiker, 665 F.2d 936, 940 (9th Cir. 1982).

Here, although Plaintiff was not represented in the earlier proceeding, Plaintiff elected to proceed in that action after being advised of her right of representation. (A.R. 46.) There was no apparent dearth of evidence to support the prior decision, and there is no challenge to its accuracy here. The evidence of Plaintiff's depression was such that the ALJ determined that Plaintiff's depression was not a severe impairment; Plaintiff herself reported that she became depressed after she was taken off disability on October 2003. (A.R. 161, 33.) From the record before this Court, it does not appear that Plaintiff's mental condition was such that it affected her earlier claim or her processing of it. The Court concludes that there are no circumstances totally foreclosing some application of res judicata, and, in view of the analysis undertaken by the ALJ in the present proceeding, there are no facts suggesting that the apparently limited application of res judicata undertaken by the ALJ resulted in manifest injustice.

Plaintiff argues generally that the ALJ adjudicated the case "under the misguided notion that Carter had to overcome the presumption of non-disability." (Op. Br. p. 23.) The ALJ did advert to his principle. However, review of the entire decision reveals that the ALJ set forth generally accurate legal standards, reviewed the evidence, and reached and articulated findings based on application of those standards.

More specifically, as Defendant notes, although the ALJ here initially adverted to the previous decision with respect to Plaintiff's severe impairments, and he further noted res judicata principles in his decision (A.R. 28-29), the ALJ fully analyzed all the new evidence presented at each sequential step of the disability analysis. (A.R. 28-36.) The ALJ considered the pertinent evidence and determined whether Plaintiff's new impairments (depression and diabetes) were severe. (A.R. 29.) He determined that the impairments that were involved in the previous proceeding (obesity and status post pin placement in the hips) were severe because Plaintiff could not perform heavy lifting because of them. (A.R. 29.) His specific reference to the previous findings was limited and was in Plaintiff's favor: he simply found without review of the evidence that he was bound by the finding in the previous decision that Plaintiff could not perform her past relevant work as clerk typist. (A.R. 35.) This finding was not prejudicial to Plaintiff because it was in her favor. With respect to the remainder of the analysis, there was no reference to any preclusion of claims or issues with respect to any finding or with respect to the overall question of disability. The Court thus concludes that the actual application of res judicata by the ALJ was quite limited, and the analysis of the ALJ's reasoning by this Court thus will not be otherwise limited by principles of res judicata.

The Court concludes that there was no rigid, inappropriate application of res judicata. However, the ALJ's decision was erroneous because the ALJ wrongly failed to find, with respect to Plaintiff's credibility and the recent opinions of her treating doctors, that Plaintiff had demonstrated changed circumstances as to the extent of the limiting effects of Plaintiff's impairments and her RFC. Therefore, the evidence at step five was insufficient to support the ALJ's decision.

VI. Listed Impairment

The ALJ expressly found that Plaintiff's impairments did not meet the severity of listing 1.02; the back injury had not resulted in nerve root compression to the extent required by listing 1.04A, arachnoiditis as required by listing 1.04B, or pseudoclaudication as required by listing 1.04C. (A.R. 30.)

Plaintiff argues that the ALJ should have considered Plaintiff's obesity in conjunction with listing 1.03, which covers reconstructive surgery or surgical arthrodesis of a major weight-bearing joint with inability to ambulate effectively, as defined in 1.00B2b, and return to effective ambulation not occurring or expected to occur within twelve months of onset. (Brief p. 25.)

The Court notes that the ALJ considered both Plaintiff's obesity and her status post pin placement as severe impairments. Further, Plaintiff's doctors who opined as to Plaintiff's functional capacity clearly considered both Plaintiff's obesity and her hip condition. In the later portions of this opinion, the Court reviews and finds erroneous the ALJ's rejection of 1) Plaintiff's subjective complaints concerning her severe impairments, and 2) the opinions of Plaintiff's treating physicians as to Plaintiff's RFC as a result of her severe impairments.

Upon remand, Plaintiff's subjective complaints and her treating physicians' opinions as to the RFC resulting from Plaintiff's severe impairments must be taken as true by the ALJ. The Plaintiff may seek to have the ALJ reconsider the meeting or equivalence with the listings of Plaintiff's severe impairments, as reflected by Plaintiff's subjective complaints and the Plaintiff's treating physicians' opinions concerning Plaintiff's severe impairments.

VII. Plaintiff's Subjective Complaints

Plaintiff argues that the ALJ failed to state clear and convincing reasons, supported by substantial evidence, for rejecting Plaintiff's subjective complaints.

The ALJ noted Plaintiff's statements that she did limited housework because of her pain, which caused difficulty with concentration; she could not sit for too long because of leg cramps. (A.R. 32.) Further, he noted Plaintiff's testimony that she weighed 315 pounds and could not work because sitting caused pain in her back, hips, and legs; the pins in her hip bones caused pain that was not ameliorated by surgery or injections; she had a numb right hand and took injections in her right elbow; and she had to lie down for about one or two hours a day, could stand and sit for thirty minutes each, and could do very little around the house. (A.R. 32-33.)

The court in Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007), summarized the pertinent standards for evaluating the sufficiency of an ALJ's reasoning in rejecting a claimant's subjective complaints:

An ALJ is not "required to believe every allegation of disabling pain" or other non-exertional impairment. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989). However, to discredit a claimant's testimony when a medical impairment has been established, the ALJ must provide "'specific, cogent reasons for the disbelief.' " Morgan, 169 F.3d at 599 (quoting Lester, 81 F.3d at 834). The ALJ must "cit[e] the reasons why the [claimant's] testimony is unpersuasive." Id. Where, as here, the ALJ did not find "affirmative evidence" that the claimant was a malingerer, those "reasons for rejecting the claimant's testimony must be clear and convincing." Id.

Social Security Administration rulings specify the proper bases for rejection of a claimant's testimony. See S.S.R. 02-1p (Cum. Ed.2002), available at Policy Interpretation Ruling Titles II and XVI: Evaluation of Obesity, 67 Fed.Reg. 57,859-02 (Sept. 12, 2002); S.S.R. 96-7p (Cum. Ed.1996), available at 61 Fed.Reg. 34,483-01 (July 2, 1996). An ALJ's decision to reject a claimant's testimony cannot be supported by reasons that do not comport with the agency's rules. See 67 Fed.Reg. at 57860 ("Although Social Security Rulings do not have the same force and effect as the statute or regulations, they are binding on all components of the Social Security Administration, ... and are to be relied upon as precedents in adjudicating cases."); see Daniels v. Apfel, 154 F.3d 1129, 1131 (10th Cir.1998) (concluding that ALJ's decision at step three of the disability determination was contrary to agency regulations and rulings and therefore warranted remand). Factors that an ALJ may consider in weighing a claimant's credibility include reputation for truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, and "unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment." Fair, 885 F.2d at 603; see also Thomas, 278 F.3d at 958-59.

With respect to the course of analysis directed by the regulations, the ALJ is first obligated to consider all symptoms and the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence. 20 C.F.R. §§ 404.1529(a), 416.929(a). Once it is determined that there is a medically determinable impairment that could reasonably be expected to produce the claimant's symptoms, the ALJ must then evaluate the intensity and persistence of the symptoms to determine how the symptoms limit the capacity for work. §§ 404.1529(b), (c); 416.929(b), (c). The ALJ will consider all available evidence. To the extent that the claimant's symptoms can be reasonably accepted as consistent with the objective medical evidence and other evidence, the symptoms will be determined to diminish the claimant's capacity for basic work activities. §§ 404.1529(c)(4); 416.929(c)(4). A claimant's statements will not be rejected solely because unsubstantiated by the available objective medical evidence. §§ 404.1529(c)(2); 416.929(c)(2).

Further, the pertinent Social Security Ruling provides in pertinent part that an ALJ has an obligation to articulate the reasons supporting the analysis:

When evaluating the credibility of an individual's statements, the adjudicator must consider the entire case record and give specific reasons for the weight given to the individual's statements.

The finding on the credibility of the individual's statements cannot be based on an intangible or intuitive notion about an individual's credibility. The reasons for the credibility finding must be grounded in the evidence and articulated in the determination or decision. It is not sufficient to make a conclusory statement that "the individual's allegations have been considered" or that "the allegations are (or are not) credible." It is also not enough for the adjudicator simply to recite the factors that are described in the regulations for evaluating symptoms. The determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight. This documentation is necessary in order to give the individual a full and fair review of his or her claim, and in order to ensure a well-reasoned determination or decision.

S.S.R. 96-7p at 4.

A. Inconsistencies

Inconsistent statements are matters generally considered in evaluating credibility and are properly factored in evaluating the credibility of a claimant with respect to subjective complaints. In rejecting testimony regarding subjective symptoms, permissible grounds include a reputation for dishonesty, conflicts or inconsistencies between the claimant's testimony and his conduct or work record, or internal contradictions in the testimony; and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which the claimant complains. Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). The ALJ may consider whether the Plaintiff's testimony is believable or not. Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999).

Here, the ALJ concluded that the intensity, persistence, and/or functionally limiting effects of Plaintiff's symptoms were not substantiated by objective medical evidence, and thus he would make findings concerning Plaintiff's credibility. (A.R. 32.)

1. Urge to Eat

The ALJ noted that Plaintiff had reported to mental health that she had been depressed since she had been taken off total disability in October 2003. (A.R. 33, 161.) Plaintiff had seen Stanislaus County Behavioral Health and Recovery Services on November 6, 2003, and she stated that after being taken off disability she felt depressed because she felt as if people were saying that she was lying about the pain she felt; further, when she was depressed, she tended to want to eat too much, which was a problem because of her obesity. (A.R. 161.) The ALJ reasoned that Plaintiff's medical records showed that Plaintiff had gained weight during the period between February 2002 and August 2003, but she actually lost twenty pounds between August 2003 and December 2003, near the time when her benefits were terminated in October 2003. (A.R. 30.)

The record reflects that, as the ALJ stated, Plaintiff did gain weight before the cessation of her benefits, and did lose weight during the time around the cessation. (A.R. 50 [280 pounds in February 2002, 285 in April 2002, and 294 in May 2002]; A.R. 237 [337 pounds in October 2002], 215 [342 pounds in June 2003], 214 [346 pounds in August 2003], 213 [344 pounds in October 2003], 212 [325 pounds in December 2003].) However, the ALJ's reasoning is not logical. Overall, Plaintiff actually gained weight. Further, Plaintiff's comment was regarding wanting to eat, not eating. It was reasonable in the context of a consultation for Plaintiff's depression that Plaintiff would report an urge to eat, which was a desire that, in view of Plaintiff's physical condition, raised risks to Plaintiff's health. When Plaintiff was examined by her treating physician in December 2003 at the time of her twenty-pound weight loss, the notes reflect that Dr. Farley stated that Plaintiff was encouraged to continue to reduce her eating that was secondary to her pain and depression. (A.R. 212.) The fact that Plaintiff could and did lose weight while participating in pool therapy provides little reason to discredit Plaintiff's reporting of the urge to eat, which Plaintiff and her treating physician continued to address.

Plaintiff had stated in a disability report that she was then also a sufferer of diabetes because of all the stress on her body. (A.R. 143.) The ALJ reasoned that Plaintiff's diabetes was related more to her weight and lack of exercise than to stress on her body. (A.R. 33.) He relied on evidence that her orthopedist, Dr. Pistel, had suggested gastric bypass surgery (A.R. 33, 340 [Dr. Pistel in March 2005 noted that Plaintiff continued to have pain and would continue to work on her exercise program, and that he advised her that she should talk with a Dr. Payne regarding gastric bypass as a way to help]), and also on Dr. Farley's recommendation that she keep a food and exercise diary (A.R. 33, 213 [In October 2003, when Plaintiff weighed 344 pounds, Dr. Farley discussed with her a food and exercise diary for her obesity]).

However, this reasoning is not clear and convincing in force. "Stress" is a word of multiple meanings, and a reference to stress on one's body could reasonably be interpreted to refer to pressure or force on the body generated by obesity. "Stress" in this context refers to any physical, chemical, or emotional factor to which an individual fails to make a satisfactory adjustment and which causes physiological tensions that may be a contributory cause of disease. Webster's Third New International Dictionary of the English Language Unabridged (2002) p. 2260. Further, it refers to a constraining force, influence or pressure, especially a force exerted when one part of the body presses upon another. Id. Thus, Plaintiff's statement was not significantly inconsistent with the clinical picture. Plaintiff's remark was reasonably interpreted as a reference to the force of Plaintiff's weight on her body, which was so serious that Dr. Pistel recommended talking with Dr. Payne in March 2005 regarding gastric bypass surgery "as a way to help." (A.R. 340.) Dr. Pistel did not treat Plaintiff's diabetes, but rather addressed her orthopedic problems. Plaintiff's reference to stress on her body was not inconsistent with weight and lack of exercise as being contributory causes of her diabetes. This reason does not provide any clear and convincing basis for rejecting Plaintiff's credibility.

2. Diagnoses

The ALJ also adverted to the inconsistency between Plaintiff's statement to Dr. Pistel that EMG findings confirmed spinal stenosis, and the medical record, which reflected that Dr. Dhaliwal in April 2005 stated that although EMG findings were normal, spinal stenosis was not ruled out, and further reflected that an MRI showed "only mild changes, with a small central bulge." (A.R. 34.) Dr. Dhaliwal's report of the electrodiagnostic report taken April 21, 2005, stated, "A normal study does not rule out underlying spinal stenosis. Clinical correlation is suggested." (A.R. 342.) Dr. Pistel's treatment note of April 26, 2005, stated, "She had a recent EMG which she was told revealed spinal stenosis. She has a clinical picture that is consistent." (A.R. 339.) Dr. Pistel's plan of the same date included getting an MRI to complement the EMG. (Id.)

The allegedly inconsistent remark that the ALJ attributed to Plaintiff was a doctor's statement about a statement that the Plaintiff made about a diagnostic type of statement that yet another professional made. Dr. Dhaliwal's note about what the test showed or did not rule out is the type of statement that can easily be misunderstood by a lay person, who is not reasonably held to understand the subtle differences between a test result's affirmatively showing something and its not ruling something out. Further, the ALJ was relying on multiple layers of hearsay. In view of Plaintiff's multiple structural problems, the fact that only a bulge affecting the thecal sac (as distinct from some more severe form of impingement involving significant nerve root compression) was ultimately found does not increase the probative force of the inference. The Court concludes that considering the context, the inconsistency is slight and is not of clear and convincing force.

3. Injections

The ALJ also relied on an inconsistency concerning the success of Plaintiff's injections, stating in pertinent part:

In January 2006, Dr. Pistel scheduled additional injections for pain, as the claimant had had a positive response. It would have been unlikely that the claimant scheduled additional injections if the first injections provided no relief as the claimant alleges. (A.R. 34.)

The record does not support the ALJ's conclusion; instead, it shows that Plaintiff repeatedly stated that the injections were not helpful, and it also reveals that the injections had a diagnostic purpose in addition to a merely therapeutic purpose. In September 2003, Plaintiff reported to Dr. Pistel that an epidural injection given by Dr. Heron had provided only short, minimal relief; Dr. Pistel recommended a second opinion concerning hip replacement and/or treatment. (A.R. 313, 316.) On October 9, 2003, Plaintiff saw Dr. Rajagopalan regarding her hip degeneration, and he recommended injecting the hip with DepoMedrol and Marcaine under CM guidance for both therapeutic and diagnostic purposes. (A.R. 312, 315.) Dr. Pistel and Dr. Rajagopalan agreed on the treatment plan. (A.R. 310.) On December 26, 2003, Plaintiff reported to Dr. Farley that she had been seen Dr. Dobson, and injections brought no relief; then Dr. Pistel had given her left hip an injection under fluroscopy on December 18, 2003, and it had not caused any improvement in her back or hip pain. (A.R. 212.)

On January 5, 2004, Plaintiff reported to Dr. Pistel that she did not get much relief from the injection; Dr. Pistel advised Plaintiff that it was too soon to consider another injection, and that she should continue conservative management to avoid total hip arthroplasty as long as possible. (A.R. 309.) In July 2005, Dr. Pistel advised a diagnostic and therapeutic injection into the hip joints and the greater trochanteric region under fluoroscopy to delineate the pain. (A.R. 325.) On September 27, 2005, Dr. Bairamian at the neurosurgery clinic reported that Plaintiff stated that a hip injection did not offer her help. (A.R. 328.) Dr. Bairamian referred her for an epidural block in addition to physical therapy. (A.R. 328-29.) In December 2005, Dr. Pistel stated that he felt that before considering hip replacement surgery, a second trial injection should be given; he would schedule one in the next few weeks. (A.R. 325.) In January 2006, Plaintiff received injections in her bilateral hip joints. (A.R. 358-59.) Dr. Pistel reported that Plaintiff had had a positive response to injection of the hips and was there for a repeat injection under fluoroscopy. (A.R. 356.) Plaintiff testified that Cortisone and Methadone shots that she had received three times were not helping her, so she was being sent to UC Medical in San Francisco. (A.R. 437.)

Although Dr. Pistel stated that Plaintiff had had a positive response to the injection, the nature of that response was not detailed; it is not clear whether the response in question was a therapeutic response or some progress in diagnosis. However, in any event, Plaintiff's medical history reflects that she repeatedly and consistently reported that the injections were not significantly helpful with respect to her subjective symptoms, and that despite her reports that the injections had not helped her pain, her doctors continued to recommend injections. Indeed, on one occasion, when Plaintiff reported no subjective gain from the injection, Dr. Pistel stated it was nevertheless too soon to consider another; thus, it affirmatively appears in the record that Dr. Pistel considered recommending injections despite Plaintiff's reports of her reactions.

Thus, under the circumstances of the case, the slight inconsistency alluded to by the ALJ does not constitute a clear and convincing reason for concluding that Plaintiff was not credible.

4. Inconsistent Medical Records

The ALJ also relied on medical records that reflected clinical signs that were inconsistent with the more customary picture of Plaintiff's functionality.

In concluding that Plaintiff's limited activities were not related to a restricted range of motion, the ALJ noted Dr. Bairamian's failure to recommend surgery because of Plaintiff's normal motor strength, normal sensation, and negative straight leg raise. (A.R. 34.) Dr. Bairamian, a neurosurgeon, evaluated Plaintiff in September 2005 and commented on potential surgical intervention only with respect to the spine, and not with respect to the hips or lower extremities. (A.R. 328-29.) Further, he himself noted tenderness in the lower lumbar region, uncomfortable hip rotation on the left, and some degenerative changes at L5-S1. He recommended a course of physical therapy, an epidural block, and losing weight. (A.R. 329.) When viewed in its entirety, Dr. Bairamian's clinical findings and recommendations, which included uncomfortable hip rotation on the left, cannot be said to constitute substantial evidence supporting a finding of unrestricted range of motion. Further, they are inconsistent with the weight of the medical evidence.

In concluding that Plaintiff did not have a restricted range of motion that limited her activities, the ALJ also relied on an observation regarding Plaintiff's full range of motion in the hips made in December 2005 at Doctors Medical Center Emergency Department. (A.R. 34, 365-66.) The probative force of this observation is undercut by the concurrent recommendation that Plaintiff be treated with further cortisone injections, by concurrent treatment with Demerol 100 and Phenergan 50 IM, and with no recommendation for change of Plaintiff's pain medications, which at that point included, among others, Methadone and Hydrocodone. (A.R. 365.) The reasoning was not clear and convincing.

B. Failure to Obtain Treatment or Follow Treatment Recommendations

1. Diabetes

In his conclusion that Plaintiff's diabetes appeared to be related more to her weight and lack of exercise than to her assertion that it was because of stress on her body, the ALJ noted that Plaintiff's treatment records showed that she was treated in the hospital for diabetes when she did not take medication. (A.R. 33.) He noted two hospitalizations when she had not taken Glucophage, stating that the second time, in July 2004, she had stopped taking her medication for two weeks. (A.R. 29.)

Plaintiff's records reflect that she was diagnosed (new diagnosis) of diabetes mellitus type 2 and prescribed Glucophage on April 28, 2004. (A.R. 207.) She was referred from urgent care to the emergency department of Doctor's Medical Center on May 25, 2004, less than a month after the new diagnosis, and discharged on May 26, 2004. (A.R. 239-40.) She was admitted with high blood sugar because she had run out of her Glucophage five days before and had just started taking it again that day. She was discharged with instructions to lose weight, go on a diabetic diet, and take needed medication. (A.R. 248, 254.) Plaintiff was again treated for high blood sugar on July 9, 2004, when it was noted that she had held her Glucophage for days with reference (illegible) to a surgery, so she took some but had a high sugar, got an insulin shot, and then went home; she was advised to return. (A.R. 282-89.) She was admitted on July 10, 2004, for hyperglycemia; although her Glucophage dose had been increased after she had been feeling bad in June and had very high glucose, she stopped the medication a week before July 10 for a surgery, which was canceled on July 9 because of high glucose. (A.R. 262.) It was noted that Plaintiff had very poorly controlled diabetes with little insight into the disease; the plan was to initiate insulin and diabetic education. (A.R. 263-65.)

An ALJ's decision to reject a claimant's testimony cannot be supported by reasons that do not comport with the agency's rules and regulations, including Social Security Rulings, which, although not of the same force and effect as a statute or regulation, are nevertheless binding on all components of the SSA and are to be relief upon as precedents in adjudicating cases. Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007).

In Byrnes v. Shalala, 60 F.3d 639, 641 (9th Cir. 1995), in the course of reviewing the required procedure for an ALJ's considering whether noncompliance affects the validity of subjective complaints, the court stated in pertinent part:

However, before basing a denial of benefits on noncompliance, the ALJ must "examine the medical conditions and personal factors that bear on whether [a claimant] can reasonably remedy" his impairment and must make specific findings.

Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir.1993); accord Preston v. Heckler, 769 F.2d 988, 990 (4th Cir.1985) (The ALJ "must develop a record establishing by substantial evidence that the claimant's impairment is reasonably remediable by the particular individual involved, given ... her social or psychological situation, and that [she] lacks good cause for failing to follow a prescribed treatment program."). Also "[e]ssential to a denial of benefits pursuant to Section 404.1530 is a finding that if the claimant followed her prescribed treatment she could return to work." Rousey v. Heckler, 771 F.2d 1065, 1069 (7th Cir.1985).

In Byrnes, the court applied the principles to hypoglycemic reactions, which were subjective phenomena not subject to objective measurement. The claimant had argued that the ALJ had failed to make sufficient underlying findings to reject the claimant's subjective complaints. The Court agreed:

Because the ALJ made no finding that "[Byrnes] was not complying with [his] prescribed treatment program[,] that [he] lacked good cause for failing so to comply," or that if he stopped smoking he could return to work, we "decline to review the record to ascertain whether substantial evidence might support these findings not made." Rousey, 771 F.2d at 1069; Preston, 769 F.2d at 990; see generally Ceguerra v. Secretary of Health and Human Services, 933 F.2d 735, 738 (9th Cir.1991) ("A reviewing court can evaluate an agency's decision only on the grounds articulated by the agency.").

Byrnes v. Shalala, 60 F.3d 639, 641 (9th Cir. 1995). The court in Byrnes thus specifically held that before denying benefits based on noncompliance, the ALJ must examine the medical conditions and personal factors that bear on whether a claimant can reasonably remedy his impairment, and the ALJ must make specific findings. Byrnes v. Shalala, 60 F.3d 639, 641 (9th Cir. 1995). It is only unexplained or inadequately explained failures to seek treatment or to follow a prescribed course of treatment that will suffice as a basis for a negative credibility finding. Orn v. Astrue, 495 F.3d 625, 636, 638.

Here, the ALJ's decision lacks any indication that the ALJ considered whether or not Plaintiff had good cause for failing to comply with treatment for her diabetes. There was no exploration of the extent of any education given to Plaintiff with the new diagnosis, the degree of the Plaintiff's understanding of her impairment or her medical instructions, or any other pertinent circumstances. However, on at least one of the two occasions, Plaintiff stopped her medication because of an anticipated surgery. The record does not reflect what the circumstances surrounding the surgery were or whether or not Plaintiff had good cause to proceed in that manner. Further, the record amply reflects that Plaintiff had poor insight into her recently diagnosed condition of diabetes. Finally, the Court notes that in the treatment note of April 28, 2004, the date on which Plaintiff's diabetes was first diagnosed and her medication first prescribed, it was stated that Plaintiff did not have the money to obtain four of her other six medications. (A.R. 207.) The record strongly suggests that Plaintiff had not been adequately instructed as to the necessity and importance of consistent treatment and the underlying physical condition; it also reflects that Plaintiff had limited financial resources with which to purchase medication. Under the circumstances, the ALJ's findings and analysis do not comport with the requirements set forth in Byrnes v. Shalala, 60 F.3d 639. The Court concludes that the ALJ's reasoning concerning Plaintiff's failure to take her medication for diabetes was not clear and convincing.

The ALJ noted that Plaintiff also sought treatment at Doctor's Medical Center on December 22, 2005, when she reported that her blood sugar level had been 121. (A.R. 29.) The record reveals that Plaintiff presented with bilateral hip pain, and her finger-stick blood sugar that morning had been 121. (A.R. 365.) The significance of this is not clear, but the mere fact of low blood sugar does not reliably demonstrate that Plaintiff had failed to comply with directions regarding treatment. It does not rise to a clear and convincing reason for an adverse credibility finding.

2. Failure to Exercise and Lose Weight

The ALJ noted that Plaintiff's physicians had repeatedly told her that her condition was related to her size and lack of activity, but Plaintiff had not generally followed the advice or followed through on the recommended activity. (A.R. 33-34.) He also stated that in December 2003, Plaintiff stated that she had tried to do the exercises that the therapist had prescribed, but she made no mention of any other forms of exercise that were recommended, such as swimming, walking, and working out in a gym. (A.R. 34.) It clearly appears that the ALJ relied on Plaintiff's failure to follow recommendations to exercise and to lose weight.

As previously noted, a failure to follow prescribed treatment may be used to support a negative credibility finding where there are no good reasons for the failure; however, an ALJ must not draw any inferences about an individual's symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the person may provide, or other information in the case record that may be explanatory. Soc. Sec. Ruling 96-7p at 7.

As the preceding review of Plaintiff's medical history reflects, Plaintiff, who was diagnosed as morbidly obese, was often encouraged to exercise and to lose weight. However, it is recognized that the goals for treatment of obesity are generally modest, and treatment is often ineffective. Orn v. Astrue, 495 F.3d 625, 637-38 (9th Cir. 2007). Thus, in this circuit it is recognized that the failure to follow treatment for obesity "tells us little or nothing about a claimant's credibility." Orn, 495 F.3d at 638. Such is the case here, where there was no clear evidence cited that the treatment was likely to be successful, and where there is no indication in the decision that the ALJ even considered whether Plaintiff, who on the basis of past experience was concerned about exacerbating her condition, had a good reason for not following the treatment regimen. The Court concludes that the ALJ's reasoning in this regard is not clear and convincing.

Likewise, to a great extent, the ALJ's reasoning concerning Plaintiff's failure to exercise is part and parcel of obesity treatment and thus presents the same deficiencies.

To the extent that the failure to exercise can be separated from a failure to lose weight, the Court notes that the record supports a finding that Plaintiff participated in water therapy several times a week for an extended period. (A.R. 349, 207, 217, 318, 345.) Further, Plaintiff repeatedly expressed concerns about perceived negative effects of therapy or exercise, which included her experience of increased pain (A.R. 210 [February 2003], 319 [March 2003], 317 [July 2003], 311 [Dr. Pistel's opinion that the only effective treatment for her continued pain was anesthesia], 344 [March 2005 post-surgery therapy and increased activity level causing increased pain], 337 [May 2005 home exercise program not helping, pain worse, MRI planned], as well as her desire to confer with a doctor for advice as to what to do with respect to therapy (A.R. 336 [August 2005]) and fear about restarting therapy because of prior episodes with pins extruding after physical therapy (A.R. 327 [October 2005]). There is no indication in the ALJ's decision that he explored Plaintiff's understanding of the therapy required, the expectations of her doctors at any given point in the therapy regimen, or the legitimacy of her reasons for her limited participation in therapy.

Given the incomplete reasoning of the ALJ in connection with this credibility finding, the Court concludes that the ALJ's reasoning was not clear and convincing.

3. Misuse of Medications

The ALJ also noted that Dr. Pistel planned to wean Plaintiff from pain medication and muscle relaxers, and the pain clinic sought to reduce her Elavil; Plaintiff had stated in December 2003 that she used the medications prescribed at night time during the day, and thus the ALJ concluded that she was using the medications in a manner other than prescribed. (A.R. 34.)

In a daily activities questionnaire completed on December 22, 2003, Plaintiff stated that she could not sleep at all because of twisting and turning all night long; she would arise at 7:00 a.m. to see her oldest daughter off to school, and then lie back down because of pain and tiredness; she stated that she took more of her night-time medication during the day to help her get around a little. She also stated that the medications she took to sleep were Soma, Lortab, Elavil, and Vioxx. (A.R. 134.) It appears that one of the medications taken for sleeping was actually a muscle relaxer (Soma) (A.R. 213), and others had been prescribed for pain in the back and hips (Vioxx, Lortab, Elavil) (A.R. 212-13, 134). Because of the generality of Plaintiff's statement, the multiplicity of medications taken by Plaintiff, and the lack of a specific record documenting instructions contrary to Plaintiff's behavior, it is not clear to what extent Plaintiff was actually taking medications in a manner or for a purpose other than what had been prescribed. Accordingly, the ALJ's reasoning in this regard was not clear and convincing.

C. Desire to Raise Her Children Well

Finally, the ALJ noted that Plaintiff had stated to mental health professionals in November 2003 that she wanted to get back on disability and be able to raise her children as well as possible (Plaintiff had three children, the youngest two and three years old). The ALJ stated:

Apparently, the claimant considered that she was not too disabled to raise her children, but she needed the disability money to raise her children on. There is no indication that the (sic) any agency has considered the claimant to need assistance in caring for her children. (A.R. 33.)

The record reflects that Plaintiff's remark was made in November 2003 to intake staff at Stanislaus County Behavioral Health and Recovery Services; her statement was noted under the "STRENGTH ASSESSMENT" portion of the intake form on a blank next to the words "Vision/hopes/goals." (A.R. 160-64, 162.) Other parts of the form document Plaintiff's statements that she would have liked to work but could not, and she spent time teaching her children.

Desiring to obtain disability benefits and wanting to raise one's children are not necessarily inconsistent; although one who is disabled is unable to engage in full-time employment, such a person does not necessarily surrender totally one's usefulness to one's children or one's dreams of being as good a parent as possible despite physical limitations. To the extent that Plaintiff's remark was significant to the ALJ because Plaintiff had not asked for assistance in caring for her children, and it thus reflected some inconsistency in her ability to "raise" her children, any probative force of such an inference was not clear and convincing. "Raising" one's children is a broad and amorphous term that might include or exclude numerous parenting activities in which normal parents might engage. To the extent that Plaintiff's remark might have referred to strictly physical activities of parenting, questionnaires concerning Plaintiff's functioning and activities reflected that she and her fiancé of many years lived together*fn5 ; he did much of the shopping and cooking, cleaning, and looking after the children; Plaintiff fed them breakfast and dinner sometimes, and might wash dishes or use the dish washer, but she was significantly aided in her household and parenting tasks by her fiancé. (A.R. 125-39.)

Further, a desire to receive disability benefits is clearly not inconsistent with disability or reflective of a wrongful state of mind. People who believe themselves to be disabled and in need of financial assistance rightly desire to receive disability benefits.

Accordingly, the Court concludes that Plaintiff's abiding desire to raise her children as well as possible was not inconsistent with her subjective complaints.

VIII. Rejection of Opinion of Treating Physicians

A. Dr. Pistel

Plaintiff argues that the ALJ failed to state specific and legitimate reasons for rejecting the opinions of Dr. Pistel, who had treated Plaintiff beginning in March 2003. (A.R. 34.) Dr. Pistel in November 2003 opined that Plaintiff's x-rays and examination revealed significant arthritic change in the coccymagna as a result of the slipped capital epiphysis; Plaintiff suffered continued pain in both legs and the low back and had gained a significant amount of weight. Due to her medical condition, any type of work or activity would be impossible. (A.R. 311.) On February 28, 2006, he concluded that because of multiple skeletal problems, continued pain in both legs and low back, and significant arthritic change in the coccymagna, Plaintiff could sit for a total of one hour in an eight-hour workday, stand/walk twenty for thirty minutes, was unable to engage in any type of activity or work and thus could not even perform sedentary work, and was disabled. (A.R. 390.)

The ALJ stated:

The claimant first told Dr. Farley of her limitations.

No treatment records show that a doctor assessed limitations. Although Dr. Pistel stated that current x-rays showed significant arthritic changes, the x-rays (sic) reports are not contained in the treatment records. Hip x-rays from Doctors Medical Center showed minimal osteoarthritic changes. In the treatment records, Dr. Pistel stated that the claimant should be weaned from pain medication and muscle relaxers. Dr. Pistel and the Pain Clinic often urged the claimant to increase her activity level, not decrease her activity level. I give little weight to Dr. Pistel's assessment, as it is not consistent with the recommendations he and other treating physicians made in the treatment records. I also note that his conclusions are administrative, not medical, and are on issues reserved to the Commissioner. (A.R. 35.)

The standards for evaluating the opinions of treating sources opinions are as follows:

By rule, the Social Security Administration favors the opinion of a treating physician over non-treating physicians. See 20 C.F.R. § 404.1527. If a treating physician's opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record, [it will be given] controlling weight." Id. § 404.1527(d)(2). If a treating physician's opinion is not given "controlling weight" because it is not "well-supported" or because it is inconsistent with other substantial evidence in the record, the Administration considers specified factors in determining the weight it will be given. Those factors include the "[l]ength of the treatment relationship and the frequency of examination" by the treating physician; and the "nature and extent of the treatment relationship" between the patient and the treating physician. Id. § 404.1527(d)(2)(i)-(ii). Generally, the opinions of examining physicians are afforded more weight than those of non-examining physicians, and the opinions of examining non-treating physicians are afforded less weight than those of treating physicians. Id. § 404.1527(d)(1)-(2). Additional factors relevant to evaluating any medical opinion, not limited to the opinion of the hysician, include the amount of relevant evidence that supports the opinion and the quality of the explanation provided; the consistency of the medical opinion with the record as a whole; the specialty of the physician providing the opinion; and "[o]ther factors" such as the degree of understanding a physician has of the Administration's "disability programs and their evidentiary requirements" and the degree of his or her familiarity with other information in the case record. Id. § 404.1527(d)(3)-(6).

Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007).

With respect to proceedings under Title XVI, the Court notes that an identical regulation has been promulgated. See, 20 C.F.R. § 416.927.

As to the legal sufficiency of the ALJ's reasoning, the governing principles have been recently restated:

The opinions of treating doctors should be given more weight than the opinions of doctors who do not treat the claimant. Lester [v. Chater, 81 F.3d 821, 830 (9th Cir.1995) (as amended).] Where the treating doctor's opinion is not contradicted by another doctor, it may be rejected only for "clear and convincing" reasons supported by substantial evidence in the record. Id. (internal quotation marks omitted). Even if the treating doctor's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing "specific and legitimate reasons" supported by substantial evidence in the record. Id. at 830, quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983). This can be done 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 747, 751 (9th Cir.1989).] The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir.1988).

Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.1998); accord Thomas, 278 F.3d at 957; Lester, 81 F.3d at 830-31.

Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007).

The ALJ did not advert to any opinion that directly supported the RFC he found for Plaintiff. The RFC he assigned to Plaintiff was light work (lifting and carrying up to twenty pounds occasionally and ten pounds frequently), with an ability to stand and walk ("stand/walk") up to six hours in an eight-hour work day, but with avoidance of heights and dangerous moving machinery, and with no climbing of ladders, ropes, or scaffolds or operating foot controls. (A.R. 35, 37.) This differed from the RFC found in the earlier proceeding (light work with only occasional bending, stooping, and twisting, but no squatting, kneeling, crawling, or climbing, and no work around hazards, such as machinery and heights). Further, the ALJ undertook to evaluate fully the new evidence of the opinions of her treating physicians. It thus cannot fairly be inferred that he considered the findings in the previous proceeding to have been res judicata.

The ALJ gave little weight to the opinions of Plaintiff's treating physicians; thus, he did not rely on them. The RFC assigned by the ALJ also differs from the opinion of state agency physicians Patrick Bianchi, M.D., and A. Dipsia, M.D., who completed physical RFC assessments on or about March 17, 2004, and August 17, 2004, to the effect that Plaintiff could perform light work, could stand at least two hours in an eight-hour workday (but apparently could not stand about six hours), sit about six hours in an eight-hour work day, but with limited pushing and pulling in the upper extremities, no climbing ladders, ropes, or scaffolds, no kneeling or crawling, and only occasional climbing of ramps and stairs, balancing, stooping, and crouching. (A.R. 196-203.) This is the evidence relied upon by Defendant as the support for the ALJ's decision. It apparently is also the only opinion evidence concerning Plaintiff's RFC that contradicts the opinions of the treating physicians that Plaintiff was disabled. However, the ALJ neither adverts to the opinions, explains his assessment of those opinions, or explains why he finds capacities greater than those assessed by the state agency physicians.

It is established that an ALJ's opinion must contain sufficient findings to permit intelligent judicial review; an ALJ need not discuss all evidence in the record, but the ALJ may not reject significant probative evidence without explaining why it was rejected. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). The ALJ failed to perform his obligation in this regard.

The ALJ failed to state specific and legitimate reasons for rejecting the opinion of Dr. Pistel, Plaintiff's treating orthopedist, who treated Plaintiff for several years before the ALJ rendered his opinion.

The ALJ noted that it was Plaintiff who had first told Dr. Farley of her limitations; he reasoned that no treatment records showed that a doctor had assessed any limitations. (A.R. 35.) This does not appear to be a mere reference to the subjective nature of Plaintiff's experience of pain; rather, it is more reasonably understood as a reference to the absence of any assessment of limitations in the treatment records. However, this reason lacks legitimate force in the context of this case. Plaintiff already led a life of extremely limited movement. When Dr. Pistel first saw her in March 2003, Plaintiff demonstrated limited spinal motion, side bending, and rotation as well as very limited range of motion in the hip, and a sciatic condition that precluded examination of the sciatic nerve. (A.R. 319.) She continued to manifest pain and marked limitations upon movement during examination and to report constant or severe pain that worsened with prolonged sitting, and with walking and standing. (A.R. 219, 307, 349.) It was made clear to her physical therapist and her pain management doctors that she already was not working and had been disabled and off work for fifteen years because of her pain. (A.R. 225, 327, 333, 344-45.)

It was Plaintiff's abnormal hips and spine and her obesity, objectively manifested conditions, that caused Plaintiff's inability to move without pain. The efforts of her treating physicians were to increase her exercise and motion and to decrease her weight, not to determine what her limitations were. Given her circumstances, it was not logical to expect that her physicians would assess precise limitations on her movement.

The ALJ also stated that although Dr. Pistel stated that current x-rays showed significant arthritic changes, the x-ray reports were not contained in the treatment records; hip x-rays from Doctors Medical Center showed minimal osteoarthritic changes. (A.R. 35.) This is a reference to Dr. Pistel's opinion of November 7, 2003, in which he referred to Plaintiff's having gained weight and her multiple musculoskeletal problems concerning her legs, hips, and low back, including capital femoral epiphysis. (A.R. 311.) The doctor stated that her current x-rays and examination revealed significant arthritic change coccymagna as a result of her slipped capital epiphysis. A search of the record reveals no x-ray images or reports during this time. However, the only logical inference is that such x-rays existed because before Dr. Pistel's report, other treatment providers did refer to x-rays. (A.R. 225 [physical therapy report of January 2003 refers to an x-ray that reflected increased L-spine lordosis]; 315 [Dr. Rajagopalan's review of October 2003 stated that Plaintiff had been having "mild degenerative changes"].) The presence of x-rays showing changes is consistent with later x-rays that revealed mild arthritic changes at L5-S1 in the spine (A.R. 328-29 [September 27, 2005]), multiple pins fixing bilateral femoral neck fractures, and a bent pin in the left hip with some minimal osteoarthritic change involving the hips (A.R. 365-67 [December 2005]). Further, it is consistent with the MRI taken in August 2005, which revealed a small central bulge at L5-S1 with mild compression of the thecal sac without evidence of nerve root compression, and with associated mild facet joint arthropathy. (A.R. 333, 387.)

The record does not support the ALJ's apparent assumption that x-rays supportive of the treating doctors' opinions were lacking. Further, given Plaintiff's multiple musculoskeletal conditions that were consistently documented with objective medical records and accompanied by documented clinical signs, the ALJ's conclusion about the extent of Plaintiff's limitations was not supported by substantial evidence. The fact that hip x-rays would show minimal osteoarthritic changes does not necessarily mean that such changes had minimal or insignificant effect in the case of Plaintiff, who was obese, suffered degenerative spinal process, was status post pin placement, and was expected eventually to require total hip replacement. As her treating physician, Dr. Pistel, explained, her low back problem was potentially caused by her hip condition and hip surgery's effect on her joint mechanics, as well as abdominal girth that was actually causing the spine to go into lordosis and pain pattern. (A.R. 319.) Shortly before he rendered his first RFC opinion, Dr. Pistel stated that Plaintiff's body habitues and size would continue to contribute to chronic low back and hip pain, although her degenerative hip problem would continue to bother her. (A.R. 316.) Again, Dr. Rajagopalan explained in October 2003, shortly before Dr. Pistel rendered his opinion, the following:

She has been having mild degenerative changes. This is subsequent to her size and inflammation from her load of her hip. The hips are a very concentric joint and therefore a little bit of changes with increased load on it will cause significant symptoms. (A.R. 315.)

The ALJ also stated that because Dr. Pistel had recommended that Plaintiff should be weaned from pain medication and muscle relaxers, and the pain clinic had often urged Plaintiff to increase her activity level, not decrease her activity level, he thus gave little weight to Dr. Pistel's opinion. (A.R. 35.)

It is established that inconsistencies between supporting findings or treatment history, on the one hand, and the expert's opinion on the other, can constitute a basis for placing less weight on a physician's opinion. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). However, in the context of Plaintiff's case, there is little inconsistency that warrants rejecting the opinion of Plaintiff's long-term treating physician. Because Plaintiff was so extremely sedentary and had been so for such an extended period of time, and because her problems stemmed not from just the abnormality of her hips, but also her obesity, her degenerative spinal arthritis, and the combined stress or force that all these conditions put on her body, there would necessarily be a long span of effort and experience between becoming stronger and more active, on the one end of the continuum, and being able to perform full-time employment at the other end. Plaintiff's physicians and therapists encouraged her to walk and stretch and to perform limited movement under water, and to lose weight and to strengthen and condition herself so that she could become active; there is no evidence that they encouraged or even envisioned immediate full-time employment. The fact that Plaintiff's physicians anticipated that Plaintiff could successfully become more active did not logically support a conclusion that she was therefore capable of basic work activities on a day-to-day basis, and that no considerable weight should be given to the opinion of her treating physician, who had consistently treated her for years, who rendered the only treater's opinion regarding her RFC that the ALJ did not simply dismiss out of hand, and whose comprehensive diagnoses of obesity and/or morbid obesity, lordosis exacerbated by obesity, status post pin placement, and degenerative spinal process in the lumbar spine were consistently supported by objective clinical indicia and were not contradicted or significantly undercut by any other treating or examining physician's findings or conclusions.

Likewise, that Plaintiff was to be weaned from her pain medication did not mean that her pain was not real or significant; rather, her doctors were attempting to encourage weight loss and shift the emphasis of treatment to encourage lifestyle changes that would benefit Plaintiff in the long term.

Defendant's argument that it is for the ALJ to resolve evidentiary conflicts is valid in principle, but in application, it misses the mark. To the extent that medical evidence is inconsistent or conflicting, it is the responsibility of the ALJ to resolve any conflicts. Morgan v. Commissioner, 169 F.3d 595, 603 (9th Cir. 1999); Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996); Matney on Behalf of Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992). However, this does not immunize the ALJ's reasoning from this Court's substantial evidence review, and it does not permit the rote adoption of a non-examining doctor's opinion in the face of a record that abounds with evidence consistent with the treating doctor's opinion and lacks substantial evidence supporting the ALJ's conclusion.

Further, it is not clear that to the extent that they would be consistent with the ALJ's determination of Plaintiff's RFC, the opinions of Drs. Bianchi and Dipsia are substantial evidence. They do technically rest on findings other than those made by Dr. Pistel. This is because Dr. Farley's findings preceded and amplified Dr. Pistel's involvement. (A.R. 157-59, 179-81.) However, Dr. Farley's findings are not inconsistent with those of Dr. Pistel for that period of time. (A.R. 236 [October 2002, tenderness to palpation over the paraspinal muscles and ST joint, straight leg test to forty-five degrees without pain in hip and buttock, pain to interior and exerior rotation of the lower extremities, some grinding in the left hip]; A.R. 234 [December 2002, pain constant and unimproved, exacerbated by lying down or sitting; tenderness to palpation over the paraspinal muscles bilaterally and over the buttocks, pain in the paraspinal muscles with straight leg raising, no radicular symptoms, flexion at forty-five degrees secondary to weight, tight hamstrings, sciatica]; A.R. 213 [October 2003, reports of inability to sit more than thirty minutes or walk more than fifteen minutes, pain at seventy degrees of flexion and with extension, limited rotation and lateral bending and limited range of motion due to pain, tenderness to palpation in the thoracic and lumbar spine and at bilateral hips and inguinal and lateral hip, prescription for muscle spasms]; A.R. 212 [December 2003, obesity contributing to back pain and arthritis, encouraged to continue weight loss]).

This is a case that is essentially like Orn v. Astrue, 495 F.3d 625 (9th Cir. 2007), in which the opinion that was contrary to the treating doctors' opinions and was relied on by the ALJ did not set forth any alternative diagnosis and did not rest on any results from significant objective tests that the treating doctor had not considered. In effect, the state agency physicians' opinions here are based on findings that are consistent with Dr. Pistel's findings and diagnoses that are consistent with Dr. Pistel's; the state agency doctors merely came to different conclusions.

As to the ALJ's reasoning that Dr. Pistel's conclusions were administrative, not medical, and were on issues reserved to the Commissioner, it is established that a determination of whether or not a claimant meets the statutory definition of disability is a legal conclusion reserved to the Commissioner; the opinion of a medical source on the ultimate issue of disability is not conclusive. 20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). However, Dr. Pistel did not conclude solely as to the ultimate issue of disability; rather, he opined specifically as to Plaintiff's capacity to sit, stand, walk, and perform work activity. The record thus does not support the ALJ's assertion that no medical opinions were stated by Dr. Pistel.

The opinions of Dr. Pistel were in the form of a letter to whom it may concern, and a questionnaire (A.R. 311, 390); it thus may be inferred that the purpose of rendering the opinions was not merely to document activity in a file, but rather was to advise someone other than Plaintiff of her condition. If by characterizing Dr. Pistel's report as administrative the ALJ meant to comment upon the purpose of the opinions, then the Court notes that in the absence of other evidence to undermine the credibility of a medical report, the purpose for which the report was obtained does not provide a legitimate basis for rejecting it. Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 1998).

The Court concludes that the ALJ failed to state specific and legitimate reasons, supported by substantial evidence, to give little weight to the opinion of Dr. Pistel. Dr. Pistel's opinion was entitled to controlling weight.

B. Opinion of Dr. Gadgil

On February 23, 2006, Dr. Neetee Gadgil opined that Plaintiff's hip pain and chronic lower back pain with radiation in the bilateral lower extremities resulted in an ability to sit at one time without rest or support for thirty minutes to one hour, and stand and walk fifteen to twenty minutes; over an eight-hour period, Plaintiff's total capacity for sitting was one hour, and her capacity for standing or walking was fifteen to twenty minutes. Further, she was unable to squat or lift her arms above her head, and she needed to change position constantly. Her condition precluded her from working at any full-time work at any exertional level, including sedentary work, from September 3, 2004, forward. (A.R. 391.) Plaintiff had to elevate her legs and lie down periodically for two hours to help with her back pain The opinion was based on Plaintiff's multiple surgeries for her hips secondary to slipped capital femoral epiphysis, and an MRI of August 2005 that showed a small disc bulge at L5-S1. (Id.)

Plaintiff argues that the ALJ's rejection of Dr. Gadgil's opinion was not supported by substantial evidence. The ALJ stated in pertinent part:

I also give little weight to this assessment. The treatment records submitted by the claimant contain no reports that Dr. Gadgil ever formally assessed the claimant's condition. (A.R. 35.)

A formal assessment, as referred to by the ALJ, is understood to refer to a recorded evaluation by the doctor in the doctor's official capacity. The record reflects that along with orthopedist Dr. Pistel, Dr. Gadgil was one of two listed physicians treating Plaintiff in August 2005 (A.R. 374) and was Plaintiff's primary care physician in September 2005 (A.R. 328-30). Further, it shows that as resident physician, Dr. Gadgil examined Plaintiff in February 2005 regarding her bilateral hip and leg pain. Dr. Gadgil reviewed Plaintiff's history, medications, and therapy; performed an examination and made findings concerning Plaintiff's decreased range of motion, ability to sit and squat, response to straight leg raising, and gait; stated her impression; and prepared a treatment plan involving instructions for home exercise, medication, physical therapy. (A.R. 345-46.) Dr. Gadgil evaluated Plaintiff's symptoms (including a precise anatomical description of the site of Plaintiff's pain), condition, progress in physical therapy, activity level, and medications in March 2005 when Plaintiff returned to the pain clinic; Dr. Gadgil modified Plaintiff's treatment plan and medications. (A.R. 344.)

The Court thus agrees with Plaintiff that because the record clearly reflects formal assessments by Dr. Gadgil, the record lacks substantial evidence to support the ALJ's reason for giving little weight to the opinion of Dr. Gadgil.

IX. Evidence from the Vocational Expert

Plaintiff argues that because the hypothetical questions propounded to the vocational expert (VE) omitted pertinent limitations, the vocational testimony is inadequate to support the ALJ's conclusions.

The Commissioner may carry its burden of showing ability to do other work by eliciting the testimony of a vocational expert (VE) in response to a hypothetical that sets out all the limitations and restrictions of the claimant that are supported by the record. Andrews v. Shalala, 53 F.3d 1035, 1044 (9th Cir. 1995). A hypothetical question posed to a vocational expert (VE) must be based on medical assumptions supported by substantial evidence that reflects all the claimant's limitations. Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001) (citing Roberts v. Shalala, 66 F.3d at 184)). An ALJ may accept or reject restrictions in a hypothetical question that are not supported by substantial evidence. Osenbrock, 240 F.3d 1157, 1164-65. Reliance on a hypothetical that fails to include all accepted limitations is insufficient to carry the agency's burden of proving ability to engage in alternative work. Andrews v. Shalala, 53 F.3d 1035, 1044 (9th Cir. 1995) (remanding case to the agency to determine vocational ability based on a hypothetical that accurately reflected mental RFC, including moderate limitations in ability to understand, remember, and carry out detailed instructions, as well as work with others without distraction, respond appropriately to work changes, and set goals or plans independently of others). Although a hypothetical should include subjective complaints, it need not include complaints which were validly rejected with a legally sufficient statement of reasons supported in the record. Light v. Social Security Administration, 119 F.3d 789, 793 (9th Cir. 1997).

Here, the two hypothetical questions propounded to the VE set forth a light work RFC with some postural and environmental limitations, and a sedentary work RFC with limitations of two hours of standing but unlimited sitting with some postural and environmental limitations. Because the functional limitations reflected by Plaintiff's subjective complaints, and the RFC set forth by the treating physicians, were both lacking from the hypothetical questions, the evidence of the VE is insufficient to support the judgment.

X. Remedy

Here, the ALJ's findings concerning credibility and RFC were not supported by legally adequate reasons that in turn were supported by substantial evidence in the record.

A district court is authorized to affirm, modify, or reverse a decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 42 U.S.C. § 405(g). The decision whether to remand a matter pursuant to sentence four of § 405(g) or to order immediate payment of benefits is within the discretion of the district court. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Where the Commissioner has failed to provide adequate reasons for rejecting the opinion of a treating or examining physician, a reviewing court generally credits them as a matter of law. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). An immediate award of benefits should be directed where 1) the ALJ has failed to provide legally sufficient reasons for rejecting the opinions, 2) there are no outstanding issues that must be resolved before a determination of disability can be made, and 3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Further, where the ALJ failed to provide legally sufficient reasons for rejecting the claimant's testimony and her treating physicians' opinions, the evidence is credited as true. Harman, 211 F.3d at 1179. If there are no outstanding issues that must be resolved before a determination of disability can be made, and where it is clear from the record that the ALJ would be required to find the claimant disabled if the evidence were credited, then remand for an award of benefits is appropriate. Id. at 1178. In these circumstances, the record has bene fully developed, and further administrative proceedings would serve no useful purpose. Benecke v. Barnhart, 379 F.3d 587, 593-96 (9th Cir. 2004).

XI. Recommendation

Accordingly, here, upon remand, Plaintiff's subjective complaints and the RFC assessments of Plaintiff's treating physicians must be credited as true; to permit any reconsideration of this evidence would be unfair to Plaintiff and would serve no valid administrative purpose.

Accordingly, it IS RECOMMENDED that the matter be remanded, and that the only issues to be addressed upon remand are 1) any specific arguments to be raised by Plaintiff concerning whether or not her severe impairments met or medically equal a listed impairment, and 2) whether given Plaintiff's RFC as reflected by her subjective claims and the RFC assessed by her treating physicians, Plaintiff can perform any other work existing in sufficient numbers in the economy (step five), and, if not, when her disability commenced.

This report and recommendation is submitted to the United States District Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Replies to the objections shall be served and filed within ten (10) court days (plus three days if served by mail) after service of the objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file 60 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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