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Alvarez v. Astrue


December 21, 2009


The opinion of the court was delivered by: Arthur Nakazato United States Magistrate Judge


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.

Issue #1

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 to perform work-related activities. The ALJ also failed to discuss the visual opinion of the examining physician (Dr. Siciarz-Lambert). (AR 189.)

Issue #2

Under the heading for Issue #2, Plaintiff does not present a separate ground for reversal. Instead, he merely contends that, "[o]n remand, the court should direct the ALJ to evaluate all of the new and material evidence submitted to the Appeals Council" and reevaluate his subjective symptom testimony. (JS 14.) The Court agrees. On remand, the Commissioner and/or ALJ shall consider all relevant evidence and make all necessary findings in light of the evidence.


The decision whether to remand for further proceedings or order an immediate award of benefits is within the district court's discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no useful purpose would be served by further administrative proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Id. at 1179 ("the decision of whether to remand for further proceedings turns upon the likely utility of such proceedings"). However, where there are outstanding issues that must be resolved before a determination of disability can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated, remand is appropriate. Id.

The Court finds a remand is appropriate because there are unresolved issues that, when properly resolved, may ultimately still lead to a not disabled finding. Accordingly, the present case is remanded for further proceedings during which the Commissioner and/or the ALJ shall:

(a) properly evaluate the opinions of Plaintiff's treating medical provider, LACDHS, regarding his visual impairments and limitations, and provide reasons for accepting or rejecting them; (b) reevaluate Plaintiff's residual functional capacity, including Plaintiff's visual limitations;*fn5 (c) reevaluate whether Plaintiff is able to perform work in light of any and all new findings; and (d) make any and all other new findings as needed.

IT IS THEREFORE ORDERED that a judgment be entered reversing the Commissioner's final decision and remanding this matter for further proceedings consistent with this Order pursuant to Sentence Four of 42 U.S.C. §405(g).

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