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Omholt v. Astrue


September 30, 2009



Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying an application for Disability Income Benefits ("DIB") under Title II of the Social Security Act ("Act"). For the reasons discussed below, the court will grant plaintiff's motion for remand, deny the Commissioner's cross-motion for summary judgment, and remand this matter under sentence four of 42 U.S.C. § 405(g) .

I. Factual and Procedural Background

In a decision dated December 14, 2007, the ALJ determined plaintiff was not disabled.*fn1 The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. The ALJ found plaintiff has a severe impairment of fibromyalgiabut this impairment does not meet or medically equal a listed impairment; plaintiff has the residual functional capacity to perform light work that involves occasional postural activities with no climbing ladders, ropes and scaffolding; plaintiff cannot perform any past relevant work; there are a significant number of jobs that plaintiff can perform; and plaintiff is not disabled. Administrative Transcript ("AT") 17-23. Among other errors, plaintiff contends the ALJ improperly disregarded the opinions of treating physicians. This contention is dispositive and requires remand.

II. Standard of Review

The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards under 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Copeland v. Bowen, 861 F.2d 536, 538 (9th Cir. 1988) (citing Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 575-76 (9th Cir. 1988)). Substantial evidence means more than a mere scintilla of evidence, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996) (citing Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975)). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 402 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ's conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the ALJ's decision simply by isolating a specific quantum of supporting evidence. Id.; see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a finding of either disability or non-disability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).

III. Analysis

Plaintiff contends the ALJ improperly rejected the opinion of his treating physician, Dr. McCrory. The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating professional, who has a greater opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996).

To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its source, the court considers whether (1) contradictory opinions are in the record, and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons. Lester, 81 F.3d at 831. In contrast, a contradicted opinion of a treating or examining professional may be rejected for "specific and legitimate" reasons, that are supported by substantial evidence. Id. at 830. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by a supported examining professional's opinion (e.g., supported by different independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). In any event, the ALJ need not give weight to conclusory opinions supported by minimal clinical findings. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir.1999) (treating physician's conclusory, minimally supported opinion rejected); see also Magallanes, 881 F.2d at 751. The opinion of a non-examining professional, without other evidence, is insufficient to reject the opinion of a treating or examining professional. Lester, 81 F.3d at 831.

Plaintiff began treating with Dr. McCrory in February 2007, after several years of treatment for fibromyalgia*fn2 with his prior physician, Dr. Patel.*fn3 In a medical assessment of ability to do work-related activities, dated April 30, 2007, Dr. McCrory opined that plaintiff could walk and stand one to two hours and sit for two to four hours, occasionally lift five to ten pounds, and could not perform the full range of sedentary work due to chronic debilitating pain, decreased strength and sensation into the extremities and decreased spinal motion. AT 175-178. Dr. McCrory further noted that plaintiff exhibited no symptom magnification. AT 178.

The ALJ rejected Dr. McCrory's opinion on the basis that it was unsupported by objective clinical, laboratory or imaging evidence and did not take into consideration plaintiff's positive response to his May 2006 arthroscopic surgery. AT 21. These reasons do not meet the standards set forth above. Dr. McCrory's records indicate several objective findings consistent with the assessed limitations, including atrophy into the left thigh, significant decreased hand grip strength, altered global motion, and pain on palpation. AT 198-202; see also AT 170 (another physician, Dr. Macko, found moderate atrophy of both thighs in May 2006). While the records of plaintiff's prior treating physician Dr. Patel contain minimal objective findings, those records contain several annotations of "disabled." AT 157, 163, 165, 167. Whether Dr. Patel was indicating plaintiff's subjective complaints or formulating an objective finding is unclear from the record; because the ALJ did not discuss these records or request clarification from Dr. Patel, the court cannot review the ALJ's assessment of this evidence. The only consultative internal medicine evaluator, Dr. Sharma, was provided no records and examined plaintiff two years prior to Dr. McCrory's assessment. AT 139. Dr. Sharma made minimal objective findings. Although plaintiff alleged an onset date of disability of December 15, 2003, given the length of time between Dr. Sharma's examination and that of Dr. McCrory, the significant difference in their objective findings and what appears to be plaintiff's deteriorating physical condition, it appears the ALJ erred in failing to consider a different onset date of disability than the one alleged by plaintiff. AT 242 (at time of hearing on August 8, 2007, plaintiff testified he spent 95% of his day in recliner); cf. AT 101 (pain questionnaire dated December 14, 2005 indicates plaintiff's daily activities include cooking breakfast, performing household chores, trimming rose bushes, working on rocks, working on computer and baseball card, stamp, and coin collections).

The decision whether to remand a case for additional evidence or simply to award benefits is within the discretion of the court. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990). Here, the ALJ improperly rejected the opinion of Dr. McCrory. However, the record is not fully developed. Even if Dr. McCrory's opinion is credited, the onset date of disability cannot be readily ascertained from the current record. As noted above, there is also ambiguity regarding the meaning of "disabled" in Dr. Patel's chart notes. A comprehensive medical exam, including review of the medical records, by a rheumatologist or other fibromyalgia specialist would properly develop the record.*fn4 See Benecke v. Barnhart, 379 F.3d 587, 594 n.4 (9th Cir. 2004) (rheumatology relevant specialty for fibromyalgia).

For the foregoing reasons, this matter will be remanded under sentence four of 42 U.S.C. § 405(g) for further development of the record and further findings addressing the deficiencies noted above.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for summary judgment is denied;

2. The Commissioner's cross-motion for summary judgment is denied; and

3. This matter is remanded for further proceedings consistent with this order.

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