The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge
MEMORANDUM OPINION AND ORDER (Social Security Case)
This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the Administrative Record ("AR") before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified AR.
Plaintiff raises the following issues:
1. Whether the Administrative Law Judge ("ALJ") articulated specific and legitimate reasons for rejecting the opinions of the treating physician; and
2. Whether the ALJ articulated clear and convincing reasons for rejecting Plaintiff's testimony.
This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that for the reasons set forth, the decision of the Commissioner must be reversed.
I. THERE IS INSUFFICIENT EVIDENCE IN THE RECORD FROM WHICH TO ASSESS PLAINTIFF'S PHYSICAL RESIDUAL FUNCTIONAL CAPACITY ("RFC")
Plaintiff's primary treating physician is Amon Attia ("Dr. Attia"). (AR 301.) A letter from Dr. Attia dated June 27, 2007 (Id.) indicates that he is board-certified in internal medicine; however, Plaintiff testified that he is her rheumatologist, and treats her primary condition of fibromyalgia. In a treatment note dated December 11, 2002, however, Plaintiff makes reference to having a primary care physician (AR 228). Plaintiff testified that she was referred by Dr. Attia to another physician, Dr. Peterson, for her primary care between the end of 2003 and late in 2004. (AR 63-64.) There are no treatment or diagnostic records from Dr. Peterson.
On December 12, 2007, Dr. Attia completed a fibromyalgia residual functional capacity questionnaire ("Questionnaire"). (AR 296-300.) He indicated that Plaintiff can walk one city block without rest or severe pain; that she can continuously sit and stand for 15 or 20 minutes; that in an eight-hour workday she can stand or walk less than two hours, and sit for about two hours. She is capable of lifting and carrying less than ten pounds on an occasional basis, but not able to carry anything in excess of ten pounds. (Id.)
Approximately 18 months earlier, on May 18, 2006, the non-examining State Agency physician, Dr. Do, assessed that Plaintiff can lift and carry 20 pounds occasionally, ten pounds frequently, and stand and/or walk for at least two hours in an eight-hour day, sit for about six hours, and that she has unlimited pushing and/or pulling capacity. (AR 161-168, at 162.)
Dr. Do concurrently completed a Request for Medical Advice. (AR 258-259.) There, Dr. Do noted that Plaintiff has seen an acupuncturist,*fn1 and has also seen Dr. Attia for her fibromyalgia. Dr. Do concluded that Plaintiff can perform a sedentary level of employment which he indicated is supported by the following reasoning:
"This is consistent and supported by the objective evidence, SXS [symptoms] of fatigue and joint pain associated with FMS [fibromyalgia], statement provided by the [Plaintiff's] acupuncturists and TP Dr. Attia's medical records, which confirm that [Plaintiff] has fatigue and joint pain. A sedentary level RFC [Residual Functional Capacity] would allow [Plaintiff] to sit for the majority of the day and takes into consideration her joint pain and fatigue issues associated with FMS." (AR 259.)
The ALJ rejected Dr. Attia's conclusions regarding Plaintiff's RFC as set forth in his Questionnaire responses, and accepted the determination of the State Agency physician. (AR 19-20.) Thus, the ALJ determined that Plaintiff has the RFC to stand and/or walk two hours, sit six hours, and lift and carry 20 pounds occasionally and ten pounds frequently. (AR 17.) In rejecting Dr. Attia's conclusions and accepting those of the State Agency physician, the ALJ stated that the conclusions ...