The opinion of the court was delivered by: Arthur Nakazato United States Magistrate Judge
AN ORDER REVERSING AND REMANDING DECISION OF COMMISSIONER
Both parties have consented to proceed before the undersigned Magistrate Judge. In accordance with the Court's Case Management Order, the parties have filed the Joint Stipulation ("JS") and seek a dispositive order regarding the disputed issues set forth in the JS. The Court's decision is based upon the pleadings, the Administrative Record ("AR"), and the JS. The Court now rules as follows with respect to the two disputed issues that Plaintiff raised in the JS.
Plaintiff contends reversal is warranted because, with respect to his visual impairments, the Administrative Law Judge ("ALJ") failed to give proper reasons for disregarding the opinions of his treating physicians. (JS 4, 7.)
The Court's review of the AR establishes the following parts of the record are relevant to the Court's ruling on this issue.
On June 28, 2005, consultative examiner, Sahniah Siciarz-Lambert, M.D., assessed Plaintiff to have corrected vision of 20/200 in his right eye, 20/50 in his left eye, and was "not restricted in terms of... seeing." (AR 189, 192.)
On August 25, 2005, non-examining state agency physician, L. Chaing-Chien, M.D., provided opinions as to Plaintiff's exertional and non-exertional limitations. (AR 194-203.) Dr. Chaing-Chien did not find any limitations related to Plaintiff's visual limitations but did opine that Plaintiff "should have better visual acuity with better correction." (AR 202.)
About four months later, on December 22, 2005, Plaintiff received treatment from the Los Angeles County Department of Health Services ("LACDHS"). (AR 216.) Plaintiff was examined by Lucrecia Escobar, O.D., who found Plaintiff's vision with his existing prescription lenses was 20/200 in his right eye, and 20/100 in his left eye. (AR 216.) Plaintiff's vision with new prescription lenses was 20/150 in the right, and 20/100 in the left. (AR 216.)*fn1 On February 22, 2006, his vision with his prescription in use was 20/400 in the right, and 20/100 in the left. (AR 210.) His vision with new prescription lenses was 20/200 in the right, and 20/80 in the left. (AR 210.)*fn2
The record contains additional LACDHS treatment notes that were not provided to the ALJ before he issued his decision on January 7, 2008. These notes show that, on August 2, 2007, Plaintiff's vision was assessed as "5 ft/200" in the right eye and 20/400 in the left eye. (AR 381.) On February 20, 2008, his vision was assessed as 20/400 in the right, and the space provided for left eye states, "HM."*fn3 (AR 390.) The provider also noted, "disability for 3 [months] legally blind now." (AR 390.) On March 27, 2008, Plaintiff's vision was assessed as 20/200 in the right eye and and "HM" in the left. (AR 394.) On July 3, 2008, his vision was found to be 20/400 in the right eye and "HM" in the left. (AR 427.) None of the foregoing treatment notes indicate whether the assessments are for Plaintiff's corrected or uncorrected vision. (AR 381, 390, 394, 427.)
At his April 17, 2007, administrative hearing, Plaintiff testified that he stopped working in 2005 because of fatigue, pain in his kidney area, numbness in his hands and his inability to see well. (AR 71, 81, 84.) He also stated that he had pain in his right eye and could not watch television because he could not see well. (AR 79.)
During the hearing, Plaintiff's counsel asked the vocational expert if a person who had "significant visual limitations in that they are essentially blind in one eye, and that the best vision in the second eye is 20/80[,]" could perform Plaintiff's past job as a travel agent helper. (AR 98-99.) The vocational expert responded that the job required near vision but that he did not have the expertise to determine what 20/80 vision meant. (AR 99.) The ALJ then asked if a person who could not see print "under" 10-point could perform the job and the vocational expert responded that such a person could not perform the job. (AR 99-100.) Neither counsel nor the ALJ asked whether this visual limitation would prevent a person from performing other work.
In his January 7, 2008 decision, the ALJ found, inter alia, that Plaintiff suffered from retinopathy and cataracts. (AR 49.) In making these findings, he cited but did not otherwise discuss the 12/22/05 treatment notes from LACDHS.*fn4 (AR 49, 215-16.) The ALJ found Plaintiff could lift and carry 50 pounds occasionally and 25 pounds frequently, and sit, stand and walk up to 6 hours in an 8-hour day. (AR 50.) The ALJ did not find Plaintiff's visual impairments caused any limitation to his ability to perform work-related activities. (AR 50-52.) In making these findings, the ALJ's decision shows that he adopted and relied upon Dr. Chaing-Chien's aforementioned 8/25/05 opinions, which Dr. Chaing-Chien provided before the conflicting opinions expressed by Plaintiff's treating physicians at LACDHS, and was over two years old by the time the ALJ issued his decision on January 7, 2008. (AR 54, 201, 203.) Further, even though the opinions about Plaintiff's visual impairments that were expressed by Plaintiff's LACDHS treating physicians conflicted with Dr. Chaing-Chien's opinion about Plaintiff's vision, the ALJ did not even mention the treating physician's opinions, let alone explain why he felt Dr. Chain-Chien's conclusory opinion was more credible. (AR 50-52.)
In order to reject a treating physician's opinion that is contradicted by the opinion expressed by another physician, the Commissioner must provide "specific and legitimate reasons" for doing so that are supported by substantial evidence. Tonapetyan v. Halter, 242 F.3d 1144, 1148-49 (9th Cir. 2001) (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996)). The opinion of a non-examining physician, by itself, does not constitute substantial evidence justifying rejection of the opinion of either a treating or examining physician. Lester, 81 F.3d at 831.
Based upon the foregoing, the Court finds a reversal of the Commissioner's final decision is warranted because, with respect to Plaintiff's visual impairments, the ALJ did not provide specific and legitimate reasons for favoring Dr. Chaing-Chien's 8/25/05 opinion over the subsequent, conflicting opinions expressed by Plaintiff's treating physicians. (AR 49.) The ALJ also failed to make any specific finding as to what Plaintiff's corrected vision was or whether Plaintiff's visual impairments caused any limitation to his near vision or otherwise limited ability ...