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Thompson v. Astrue

January 15, 2009

JAMES R. THOMPSON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

MEMORANDUM OPINION AND ORDER OF REMAND

Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.

PROCEEDINGS

Plaintiff filed a complaint on May 6, 2008, seeking review of the Commissioner's denial of benefits. The parties filed a consent to proceed before a United States Magistrate Judge on June 25, 2008. Plaintiff filed a motion for summary judgment on November 6, 2008.

Defendant filed a motion for summary judgment on January 13, 2009. The Court has taken both motions under submission without oral argument. See L.R. 7-15; "Order," filed May 8, 2008.

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

Plaintiff asserts disability based on alleged physical impairments (Administrative Record ("A.R.") 366-70). The Administrative Law Judge ("ALJ") found Plaintiff disabled from February 20, 2002 through January 20, 2006, but not thereafter (A.R. 15-25). The Appeals Council denied review (A.R. 5-8).

In a report dated May 17, 2007, Plaintiff's treating physician opined: "I agree with [Plaintiff's] prior physicians that his condition is permanent and stationary and has not changed since his last evaluation by Dr. Rahman [on January 24, 2002]" (A.R. 361). The ALJ interpreted the treating physician's report "to mean that [Plaintiff] was still 'permanent and stationary,' rather than the severity of his condition had not decreased since January 24, 2002 . . ." (A.R. 21). The ALJ also stated, alternatively, that if the treating physician "meant to infer that [Plaintiff's] overall medical condition had not improved since January 24, 2002, the undersigned observes that this contention would be strongly contradicted by the medical record, as documented above" (A.R. 21).

Plaintiff contends, inter alia, that the treating physician's May 17, 2007 opinion meant not merely that Plaintiff's condition was permanent and stationary, but also that the severity of Plaintiff's condition had not changed between 2002 and 2007. Plaintiff also contends that the ALJ failed to state sufficient reasons for rejecting this purported opinion regarding the continuing nature of Plaintiff's condition.

STANDARD OF REVIEW

Under 42 U.S.C. section 405(g), this Court reviews the Commissioner's decision to determine if: (1) the Commissioner's findings are supported by substantial evidence; and (2) the Commissioner used proper legal standards. See Swanson v. Secretary, 763 F.2d 1061, 1064 (9th Cir. 1985).

DISCUSSION

A treating physician's opinions "must be given substantial weight." Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) ("the ALJ must give sufficient weight to the subjective aspects of a doctor's opinion . . . This is especially true when the opinion is that of a treating physician") (citation omitted). Even where the treating physician's opinions are contradicted,*fn1 "if the ALJ wishes to disregard the opinion[s] of the treating physician he . . . must make findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987) (citation, quotations and brackets omitted); see Rodriquez v. Bowen, 876 F.2d at 762 ("The ALJ may disregard the treating physician's opinion, but only by setting forth specific, legitimate reasons for doing so, and this decision must itself be based on substantial evidence") (citation and quotations omitted); McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) ("broad and vague" reasons for rejecting the treating physician's opinions do not suffice).

Section 404.1512(e) of 20 C.F.R. provides that the Administration "will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, the report does not contain all of the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques." See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) ("If the ALJ thought he needed to know the basis of Dr. Hoeflich's opinions in order to evaluate them, he had a duty to conduct an appropriate inquiry, for example, by subpoenaing the physicians or submitting further questions to them. He could also have continued the hearing to augment the record") (citations ...


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