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Bell v. Astrue


May 5, 2009


The opinion of the court was delivered by: Paul L. Abrams United States Magistrate Judge



Plaintiff filed this action on March 10, 2008, seeking review of the Commissioner's denial of her applications for Disability Insurance Benefits and Supplemental Security Income. The parties filed Consents to proceed before the undersigned Magistrate Judge on March 31, 2008, and April 14, 2008. Pursuant to the Court's Order, the parties filed a Joint Stipulation on October 29, 2008, that addresses their positions concerning the disputed issues in the case. The Court has taken the Joint Stipulation under submission without oral argument.


Plaintiff was born on June 29, 1962. [Administrative Record ("AR") at 1065.] She has a high school education and has completed one year of college. [AR at 121, 185.] Plaintiff has past relevant work experience as an installer, automotive instructor, and in aircraft repairs. [AR at 116-17.]

On February 24, 2005, plaintiff filed her applications for Disability Insurance Benefits and Supplemental Security Income payments, alleging that she has been unable to work since December 2, 2002, due to soft tissue injuries of the arm, depression, and anxiety. [AR at 115-22, 1065.] After her applications were denied initially and on reconsideration, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). [AR at 40, 44, 47-51, 55-61.] A hearing was held on October 4, 2006, at which time plaintiff appeared with counsel and testified on her own behalf. [AR at 1063-91.] A vocational expert and a medical expert also testified. [AR at 1076-77, 1080-84, 1090.] On February 22, 2007, the ALJ determined that plaintiff was not disabled. [AR at 11-23.] Plaintiff requested review of the hearing decision. [AR at 10.] When the Appeals Council denied plaintiff's request for review on January 11, 2008, the ALJ's decision became the final decision of the Commissioner. [AR at 3-6.] This action followed.


Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

In this context, the term "substantial evidence" means "more than a mere scintilla but less than a preponderance -- it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 1257. When determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258.


Persons are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted or is expected to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257.


The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting her ability to do basic work activities; if not, a finding of non-disability is made and the claim is denied. Id. If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient "residual functional capacity" to perform her past work; if so, the claimant is not disabled and the claim is denied. Id. The claimant has the burden of proving that she is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie case of disability is established. The Commissioner then bears the burden of establishing that the claimant is not disabled, because she can perform other substantial gainful work available in the national economy. The determination of this issue comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.


In this case, at step one, the ALJ found that plaintiff had not engaged in any substantial gainful activity since the alleged onset date of the disability.*fn1 [AR at 16.] At step two, the ALJ concluded that plaintiff has the following "severe" impairment: "a left shoulder dislocation with status post multiple surgeries for instability which more than minimally restrict her ability to perform work related activities." [AR at 16.] At step three, the ALJ determined that plaintiff's impairments do not meet or equal any of the impairments in the Listing. [AR at 17.] The ALJ also found that plaintiff retained the residual functional capacity ("RFC")*fn2 to "lift and carry 20 pounds occasionally and 10 pounds frequently with the bilateral upper extremities, but is able to lift and carry only 5 pounds with the left upper extremity[;] sit for six hours out of an eight hour day[;] and stand/walk for six hours out of an eight hour day with a change of position at normal workday breaks"; push and pull with the right upper extremity, but not the left upper extremity; frequently climb stairs, bend, balance, stoop, kneel or crouch, but never climb ladders/scaffolds or crawl; and frequently, but not constantly, perform gross and fine manipulation with the left upper extremity. [AR at 17.] The ALJ further found that plaintiff is restricted from "reaching or lifting at or above shoulder level," and "performing forceful gripping or torquing" with the left upper extremity, and "working at unprotected heights, being around dangerous or fast moving machinery, and using vibratory tools." [AR at 17-18.] At step four, the ALJ concluded that plaintiff was not capable of performing her past relevant work. [AR at 22.] At step five, the ALJ found, based on the vocational expert's testimony, that "there are jobs that exist in significant numbers in the national economy that [plaintiff] can perform." [AR at 22-23.] Accordingly, the ALJ determined that plaintiff is not disabled. [AR at 23.]


Plaintiff contends that the ALJ: (1) erred in failing to consider plaintiff's depression and anxiety beyond step two of the five-step evaluation process; (2) erred in finding that plaintiff's shoulder impairment failed to meet or equal the criteria of the Listing at section 1.08; and (3) improperly restated and weighed the functionality opinions of treating orthopaedist Dr. George F. Hatch, III. Joint Stipulation ("Joint Stip.") at 19. As set forth below, the Court agrees with plaintiff, in part, and remands the matter for further proceedings.


Plaintiff argues that the ALJ erred in concluding that her depression "does not amount to even a legally severe impairment" at step two of the evaluation process. Joint Stip. at 20-23. Specifically, plaintiff asserts that the evidence of her depression was "too significant to dismiss at that early stage of the analysis, and the ALJ's sole stated reason for declaring her depression non-severe was legally insufficient." Joint Stip. at 21. Defendant argues that plaintiff failed to establish medical severity as to her depression and anxiety, and that substantial evidence supports the ALJ's step two finding. Joint Stip. at 25-26.

A "severe" impairment, or combination of impairments, is defined as one that significantly limits physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520, 416.920. "The Supreme Court has recognized that including a severity inquiry at the second stage of the evaluation process permits the [Commissioner] to identify efficiently those claimants whose impairments are so slight that they are unlikely to be found disabled even if the individual's age, education, and experience are considered." Corrao v. Shalala, 20 F.3d 943, 949 (9th Cir. 1994) (citing Bowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287, 96 L.Ed. 2d 119 (1987)). However, an overly stringent application of the severity requirement would violate the statute by denying benefits to claimants who meet the statutory definition of "disabled." Corrao, 20 F.3d at 949 (citing Bowen v. Yuckert, 482 U.S. at 156-58). Despite use of the term "severe," most circuits, including the Ninth Circuit, have held that "the step-two inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing Bowen v. Yuckert, 482 U.S. at 153-54); see Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir. 1997) ("A claimant's showing at level two that he or she has a severe impairment has been described as 'de minimis'"); see also Hudson v. Bowen, 870 F.2d 1392, 1396 (8th Cir. 1989) (evaluation can stop at step two only when there is no more than minimal effect on ability to work). An impairment or combination of impairments should be found to be "non-severe" only when the evidence establishes merely a slight abnormality that has no more than a minimal effect on an individual's physical or mental ability to do basic work activities. See Corrao, 20 F.3d at 949 (citing Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (citing Social Security Ruling*fn3 85-28)); see also Smolen, 80 F.3d at 1290 (citations omitted); 20 C.F.R. §§ 404.1521(a), 416.921(a). "Basic work activities" mean the abilities and aptitudes necessary to do most jobs, including "physical functions...," "[u]nderstanding, carrying out, and remembering simple instructions," "[u]se of judgment," "[r]esponding appropriately to supervision, co-workers and usual work situations," and "[d]ealing with changes in a routine work setting." 20 C.F.R. §§ 404.1521(b)(3)-(6), 416.921(b)(3)-(6).

In the decision, the ALJ did not find that plaintiff had a severe mental impairment. [AR at 16.] The ALJ concluded that plaintiff was not under treatment for a mental disorder, and that plaintiff "had also reported that symptoms of anxiety and depression were controlled with medications." [AR at 16.]

The ALJ's conclusion that plaintiff was not under treatment for a mental disorder is not wholly accurate. [AR at 16.] To the extent that the ALJ found plaintiff's mental impairments non-severe based on lack of treatment from a mental healthcare provider,*fn4 such a finding is insufficient under the specific circumstances of this case. [AR at 16.] An ALJ may "generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist." 20 C.F.R. §§ 404.1527(d)(5), 416.927(d)(5). Some courts, however, have rejected the notion that a specialist's opinion should be given greater weight than a generalist who treated and examined the claimant in instances where the generalist practices in the area of specialty. In Sprague v. Bowen, the court found that a treating physician's opinion was medically acceptable notwithstanding his lack of specific expertise in psychiatry because "primary care physicians (those in family or general practice) 'identify and treat the majority of Americans' psychiatric disorders.'" 812 F.2d 1226, 1232 (9th Cir. 1987) (citation omitted). The Sprague court concluded that a duly licensed, primary care physician can practice and render psychiatric services and give a qualified opinion as to how the claimant's mental state impacted her physical disability. Id. (citations omitted). Similarly, in Lester, the court held that the ALJ could not disregard the treating physician's opinion regarding the claimant's mental functioning solely because the treating physician was not a mental health expert. 81 F.3d at 833. The Lester court found that the treating physician, who specialized in treating chronic pain, provided treatment for the claimant's psychiatric impairment and that his opinion constituted competent psychiatric evidence, notwithstanding the fact that he was not a board-certified psychiatrist. Id.

Here, plaintiff was treated by a family practice physician, Dr. Dana Yan, for well over three years. [AR at 679-727, 731-68, 773.] On February 22, 2005, Dr. Yan completed a Multiple Impairment Questionnaire concerning plaintiff's impairments. [AR at 706-13.] Dr. Yan noted that plaintiff's experience of pain, fatigue or other symptoms is severe enough to "constantly" interfere with attention and concentration. [AR at 711.] She indicated that emotional factors, i.e., depression and anxiety, contribute to the severity of plaintiff's symptoms and functional limitations. [AR at 711.] Dr. Yan opined that plaintiff has anxiety and depression along with chronic pain, and thus is capable of tolerating only "low stress" work as "stressful situations will aggravate her symptoms." [AR at 711.] The treatment records from Family Care Centers, which contain Dr. Yan's treatment notes, indicate that plaintiff was depressed and that plaintiff's medications included Paxil and Xanax. [AR at 679, 692, 697, 701, 717, 731-33, 738, 741, 744, 747, 750, 752, 754, 758, 766, 768, 911, 922, 924, 930, 933-34, 939.] In a letter dated May 22, 2006, Dr. Yan noted that plaintiff "is currently taking multiple combinations of pain medications, muscle relaxants, anti-anxiety and antidepressant medications for her symptoms." [AR at 954.] Dr. Yan further noted that the side effects of the medications "limit [plaintiff's] ability to concentrate, perform mental tasks, perform gross and fine motor skills, and perform effectively at work." [Id.] Dr. Yan opined that plaintiff "is disabled from her condition." [AR at 954.]

Furthermore, the record includes treatment notes from other physicians that support Dr. Yan's opinion, and thus undermine the ALJ's step two determination.*fn5 On March 20, 2001, Dr. Edward Etzkorn of Family Care Centers assessed plaintiff with severe depression, increased the strength of her Paxil prescription, and refilled her prescription for Xanax. [AR at 820.] Plaintiff was referred to clinician Richard Sullivan for treatment on April 2, 2001. [AR at 898.] Mr. Sullivan completed a Health Care Coordination Form, in which he noted that plaintiff was diagnosed with major depressive disorder, recurrent.*fn6 Mr. Sullivan also noted plaintiff's medications as Paxil and Xanax,*fn7 and indicated that those medications were being managed by a mental health professional. [AR at 898.] Mr. Sullivan further noted that outpatient care is being delivered and that the treatment plan consists of individual psychotherapy. [Id.] Also, on several occasions in 2006, plaintiff was noted as having a depressed mood, and assessed with depression. [AR at 996-99.]

In addition, the complete psychiatric evaluation of plaintiff performed by Dr. Suzanne Dupee on September 20, 2003, in conjunction with plaintiff's previous application for disability benefits, supports Dr. Yan's opinion, and also undermines the ALJ's conclusion that plaintiff's mental impairments are non-severe. [AR at 16, 401-06.] "[E]ven if a doctor's medical observations regarding a claimant's allegations of disability date from earlier, previously adjudicated periods, the doctor's observations are nevertheless relevant to the claimant's medical history and should be considered by the ALJ." See McLeroy v. Barnhart, 2006 WL 4046154, *6 (D. Kan. Oct. 31, 2006); see also Groves v. Apfel, 148 F.3d 809, 810-11 (7th Cir. 1998) (evidence submitted in earlier application for benefits is relevant to subsequent disability application when determining whether claimant is disabled by a progressive condition). In the evaluation, Dr. Dupee noted that plaintiff "is currently being treated with 60 mg of Paxil and Xanax [as needed]...." [AR at 402.] She further noted that plaintiff has thought about suicide "when the pain gets bad." [AR at 402.] During the mental status examination of plaintiff, Dr. Dupee found that plaintiff had an "exhausted" mood, "tearful" affect, "passive suicidal thoughts when the pain is severe," and difficulties with concentration. [AR at 403-04.] She indicated that plaintiff's "mental problems are only secondary to her physical limitations." [AR at 405.] Dr. Dupee opined that plaintiff "did have some problems with her concentration due to her pain but hopefully, with adequate treatment and recovery from her shoulder surgery, her physical symptoms will improve and therefore, her depression should be resolved." [AR at 405.] She found that plaintiff was moderately impaired in the ability to maintain concentration, attention, persistence and pace. [AR at 405.] Dr. Dupee diagnosed plaintiff with "adjustment disorder with depressed mood" and assessed plaintiff with a Global Assessment of Functioning ("GAF") score of 55-60.*fn8

The ALJ failed to mention all of the relevant evidence in assessing the severity of plaintiff's mental impairments, specifically, the findings of depression and anxiety,*fn9 the limitation on plaintiff's ability to maintain concentration and attention, and the GAF assessment of 55-60,*fn10 and did not offer any sufficient reasons for the disregard of such evidence. See Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (error for an ALJ to ignore competent evidence in the record in order to justify her conclusion). Thus, the ALJ erred in concluding, without properly addressing "competent evidence" in the record, that plaintiff was not under treatment for a mental disorder.

Moreover, the ALJ's finding that plaintiff had "reported that symptoms of anxiety and depression were controlled with medications" is not reflective of the record as a whole. [AR at 16.] Although the ALJ may consider whether plaintiff's impairments are controlled with medications in determining the severity of her impairments,*fn11 the ALJ may not consider only those portions of the record that favor her ultimate conclusion. See Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (an ALJ is not permitted to reach a conclusion "simply by isolating a specific quantum of supporting evidence"); see also Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983) (while the ALJ is not obligated to "reconcile explicitly every conflicting shred of medical testimony," she cannot simply selectively choose evidence in the record that supports her conclusions); Whitney v. Schweiker, 695 F.2d 784, 788 (7th Cir. 1982) ("[A]n ALJ must weigh all the evidence and may not ignore evidence that suggests an opposite conclusion.") (citation omitted). Here, in support of her conclusion, the ALJ cited only the treatment records from Centinela Hospital Medical Center. [AR at 16, 407-19.] In the Internal Medicine Consultation/Preoperative Clearance report dated July 22, 2003, included in the treatment records cited by the ALJ, Dr. William G. Lang noted that plaintiff "reports anxiety and depression as a consequence of her chronic pain which has been controlled with medications...," and assessed plaintiff with "[a]nxiety/depression, controlled with medications." [AR at 409, 412.] The ALJ improperly isolated Dr. Lang's findings in the preoperative evaluation in determining that plaintiff did not suffer from a severe mental impairment.*fn12 Dr. Lang did not treat plaintiff for depression or anxiety; he merely performed a preoperative examination of plaintiff in connection with surgery that was unrelated to any mental health issues. A review of the record as a whole does not corroborate the single statement by plaintiff during the preoperative examination that her psychiatric problems were controlled with medications, or Dr. Lang's subsequent assessment based on that statement. Indeed, at the hearing on October 4, 2006, plaintiff testified that her family thinks she has mental problems. [AR at 1069.] She also testified that while she is not currently seeing a psychiatrist or psychologist, her primary care physician has requested that she do so because on occasion she has been so depressed that she has mentioned committing suicide. [Id.] She further testified that she was taking 60 milligrams of Paxil a day and one milligram of Xanax as needed, which were prescribed by her primary care physician. [AR at 1069.] Additionally, Dr. Yan, who treated plaintiff for an extended period, found her disabled despite the fact that plaintiff was taking antidepressants and anti-anxiety medications, as well as pain medications. [AR at 954.] See Smolen 80 F.3d at 1285 (9th Cir. 1996) (the opinions of treating physicians are generally given greater weight than those of other physicians, because treating physicians are employed to cure and therefore have a greater opportunity to know and observe the claimant). Further, Dr. Dupee performed a mental status examination of plaintiff in which she found that plaintiff is moderately impaired in the ability to maintain concentration, attention, persistence, and pace, and noted that plaintiff has thoughts of suicide "when the pain gets bad" despite being treated with Paxil and Xanax. [AR at 402, 405.] See 20 C.F.R. §§ 404.1527(d)(3), 416.927(d)(3) (the more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight it will be given). Plaintiff's testimony and the opinions of Dr. Yan and Dr. Dupee undermine the ALJ's finding that plaintiff's depression and anxiety were controlled with medications.

The ALJ's conclusion that plaintiff did not suffer from a severe mental impairment is not supported by substantial evidence. The record as a whole suggests that plaintiff meets the de minimis test at step two of the sequential analysis. Accordingly, remand is warranted on this issue.


Plaintiff contends that the ALJ improperly considered the opinion of plaintiff's treating orthopaedist, Dr. Hatch. Joint Stip. at 32-34.

In the decision, the ALJ indicated that Dr. Hatch had given a blanket, conclusory statement of disability without identifying any specific functional limitations. [AR at 21.] Nevertheless, the ALJ noted that Dr. Hatch submitted a functional assessment that in "many aspects comports with the opinion given by the medical expert, Dr. [Joseph] Jensen." [AR at 21.] Specifically, Dr. Hatch, like Dr. Jensen,*fn13 found that plaintiff could lift up to 10 pounds and carry up to 5 pounds on an occasional basis, and that she is essentially precluded from grasping, turning and twisting objects or using her arms for reaching with the left upper extremity, but she is only minimally limited in the left upper extremity in using her fingers/hands for fine manipulations. [Id.]

Dr. Hatch treated plaintiff for well over a year. [AR at 606-74, 990-95.] He performed an initial orthopaedic consultation of plaintiff on March 29, 2005, which revealed, among other things, tenderness to palpation and deceased motor strength. [AR at 629.] During his treatment of plaintiff, Dr. Hatch assessed plaintiff with left shoulder instability and capsular insufficiency. [AR at 625, 632.] On June 1, 2005, Dr. Hatch performed surgery on plaintiff's left shoulder. [AR at 661-71.] Although Dr. Hatch initially noted that plaintiff was doing well following her surgery [AR at 621-22, 630], he subsequently noted that plaintiff had increased anterior shoulder pain. [AR at 612, 617-19.] After a review of the MR anthrogram of plaintiff's left shoulder performed on January 10, 2006, Dr. Hatch opined that plaintiff's pain and "flipping" sensation in her shoulder were likely due to the instability of her biceps tendons. [AR at 637-38, 957-58.] Based on his examination of plaintiff and review of the MR anthrogram, Dr. Hatch recommended another left shoulder surgery. [AR at 958.]

In an undated Bilateral Manual Dexterity Impairment Questionnaire, Dr. Hatch noted that plaintiff had reduced grip strength, tenderness, and loss of fine coordination of the left hand. [AR at 990.] He further noted that plaintiff's primary symptoms include pain, instability, and weakness.

[AR at 991.] Dr. Hatch found that plaintiff could lift 0-5 pounds on a frequent basis and 5-10 pounds on an occasional basis, but could only carry 0-5 pounds on an occasional basis.*fn14 [AR at 992.] Dr. Hatch further found that plaintiff is markedly limited (essentially precluded) in the left upper extremity in her ability to grasp, turn, and twists objects, and in using her arms for reaching. [AR at 994.] In a Supplemental Report dated October 12, 2006, Dr. Hatch noted that plaintiff "has a diagnosis of instability with complete loss of her anterior capsule of her left shoulder, leading to gross instability." [AR at 1038.] He found that plaintiff's "condition meets the criteria of listing 1.08 with significant soft tissue injury of the left upper extremity." [AR at 1038.] Dr. Hatch opined that plaintiff "will not be able to regain major function in her left upper extremity, even after surgical stabilization has been performed." [AR at 1038.] He further opined that plaintiff "will be unable to perform fine and gross movements with the left upper extremity secondary to this disability." [AR at 1038.]

The ALJ's conclusion that Dr. Hatch gave a blanket, conclusory statement of disability without identifying any specific functional limitations is not supported by the record.*fn15 [AR at 21.]

Although an ALJ may reject a treating physician's opinion that is conclusory and unsupported by clinical findings (see Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (treating physician's opinion may be rejected if it is brief, conclusory, and inadequately supported by clinical findings)), such is not the case here. As detailed above, Dr. Hatch treated plaintiff on numerous occasions over an extended period, and assessed plaintiff's functional limitations. [AR at 606-74, 990-95, 1038.] See 20 C.F.R. §§ 404.1527(d)(2)(i), (ii), 416.927(d)(2)(i), (ii) (weight accorded to a treating physician's opinion dependent on length of the treatment relationship, frequency of visits, and nature and extent of treatment received). Based on the length of the treatment and Dr. Hatch's experience with plaintiff, Dr. Hatch had the broadest range of knowledge regarding plaintiff's medical condition, which is supported by the record. See Smolen, 80 F.3d at 1279; see also 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2) (treating physicians "are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s)...."); Lester, 81 F.3d at 833 ("The treating physician's continuing relationship with the claimant makes him especially qualified... to form an overall conclusion as to functional capacities and limitations, as well as prescribe or approve the overall course of treatment."). Given that Dr. Hatch assessed plaintiff's functional limitations based on his extensive treatment of plaintiff, including physical examinations, review of imaging studies, and surgery, the ALJ's rejection of Dr. Hatch's opinion as conclusory itself lacks substantiation.

Moreover, the ALJ's selective reliance on particular findings of Dr. Hatch to support his non-disability determination was error. As discussed above, the ALJ may not point to and discuss only those portions of the treatment record that favor her ultimate conclusion. See Day, 522 F.2d at 1156 (an ALJ must look at the record as a whole and not merely at the findings that support a non-disability determination). Here, the ALJ bolstered her reliance on Dr. Jensen's opinion by concluding that the majority of the findings in Dr. Hatch's functional assessment were similar to Dr. Jensen's findings. [AR at 21.] While the ALJ was correct regarding certain similarities between the two opinions, the ALJ did not discuss the portions of Dr. Hatch's opinion that differed from Dr. Jensen's opinion, nor offer legally sufficient reasons to discount any portion of Dr. Hatch's opinion.*fn16

Specifically, the ALJ failed to discuss or reject Dr. Hatch's opinion that plaintiff is unable to perform fine and gross movements with the left upper extremity, as well as Dr. Hatch's conclusion that plaintiff's condition meets the criteria of the Listing at section 1.08 with significant soft tissue injury of the left upper extremity. [AR at 1038.] Contrary to Dr. Hatch's findings, Dr. Jensen found plaintiff "would be capable on a frequent basis of doing light, gross, and fine manipulation," and opined that plaintiff does not meet or equal the criteria of the Listing at section 1.08. [AR at 1081-84.] Thus, the ALJ erred by failing to properly consider the opinion of Dr. Hatch as a whole, and did not provide a sufficient explanation for her failure to do so. As such, remand is warranted on this issue.*fn17


As a general rule, remand is warranted where additional administrative proceedings could remedy defects in the Commissioner's decision. See Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir.), cert. denied, 531 U.S. 1038 (2000); Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). In this case, remand is appropriate to properly consider: (1) the severity of plaintiff's mental impairments at step two of the sequential analysis; and (2) the opinion of Dr. Hatch. The ALJ is instructed to take whatever further action is deemed appropriate and consistent with this decision.

Accordingly, IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is granted; (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further proceedings consistent with this Memorandum Opinion.

This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included or submitted to any online service such as Westlaw or Lexis.

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