The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge
Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for disability insurance benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.
The parties are familiar with the procedural facts, which are summarized in the Joint Stipulation. [See JS 2]. In a June 23, 2008 written hearing decision that constitutes the Commissioner's final decision in this case, the ALJ concluded that plaintiff was not disabled because she could perform her past relevant work. [Administrative Record ("AR") 33-35].
The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).
Plaintiff contends that the ALJ erred in rejecting the opinion of a treating physician Robert S. Pashman, M.D. [See JS 4-17].
The ALJ found that plaintiff has severe impairments consisting of disc disease of the lumbar spine, status post hemi-laminectomy on October 29, 2003, idiopathic scoliosis of the thoracolumbar spine, and degenerative joint disease of the left knee, status post arthroscopic surgery on January 18, 2006. [AR 23].
A treating physician's opinion is not binding on the Commissioner with respect to the existence of an impairment or the ultimate issue of disability. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). Where, however, a treating physician's medical opinion as to the nature and severity of an individual's impairment is well-supported and not inconsistent with other substantial evidence in the record, that opinion is entitled to controlling weight. Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001); Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); see 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); Social Security Ruling ("SSR") 96-2p, 1996 WL 374188, at *1-*2. Even when not entitled to controlling weight, "treating source medical opinions are still entitled to deference and must be weighed" in light of (1) the length of the treatment relationship; (2) the frequency of examination; (3) the nature and extent of the treatment relationship; (4) the supportability of the diagnosis; (5) consistency with other evidence in the record; and (6) the area of specialization. Edlund, 253 F.3d at 1157 & n.6 (quoting SSR 96-2p and citing 20 C.F.R. § 404.1527); Holohan, 246 F.3d at 1202.
The ALJ must provide clear and convincing reasons, supported by substantial evidence in the record, for rejecting an uncontroverted treating source opinion. If contradicted by that of another doctor, a treating or examining source opinion may be rejected for specific and legitimate reasons that are based on substantial evidence in the record. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Tonapetyan, 242 F.3d at 1148-1149; Lester v. Chater, 81 F.3d 821, 830-831 (9th Cir. 1995). "The opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician." Lester, 81 F.3d at 831.
The ALJ found that plaintiff retained the residual functional capacity ("RFC") for light work, except that she could stand or walk for a total of two hours in an eight-hour day, must be permitted to alternate sitting and standing to relieve pain or discomfort, and was limited to occasional bending and stooping. [AR 32]. In making that determination, the ALJ rejected a May 10, 2004 assessment by Dr. Pashman, the "Director of Scoliosis and Spinal Deformity" at the Cedars-Sinai Institute for Spinal Disorders. [See AR 279-280]. On that date, Dr. Pashman signed a completed assessment form entitled "Attending Physician's Statement of Impairment and Function." [AR 279-280]. That form bears the logo of "ING Employee Benefits," and it includes the following statement: "The patient is responsible for the completion of this form without expense to the employer." [AR 279]. Dr. Pashman provided the following information on that form. Plaintiff had a primary diagnosis of adult idiopathic scoliosis, with additional diagnoses of adult fractional lumbosacral curve and clinical severe left L-5 radiculopathy. [AR 27, 279]. Plaintiff's subjective symptoms were low back pain and leg pain, with an objective finding of "scoliosis." MRIs of the lumbar spine were obtained on January 2, 2003 and October 23, 2003, as well as "various x-rays" on January 14, 2003 and October 29, 2003. [AR 279]. Those diagnostic tests showed degenerative disc disease at L4-S1. Plaintiff underwent surgery, a hemi-laminectomy at L5, on October 29, 2003. Dr. Pashman advised plaintiff to stop working as of that date. [AR 279]. Plaintiff's current treatment plan entailed physical therapy two to three times a week. Plaintiff was compliant with, and exhibited good tolerance to, physical therapy. [AR 273]. With respect to the period from October 29, 2003 (the date of plaintiff's surgery) through November 29, 2004, Dr. Pashman opined that plaintiff could lift less than ten pounds occasionally and could sit, stand, or walk for less than one hour each. [AR 279-280]. Those restrictions indicate that plaintiff could not perform the full range of sedentary work or work for eight hours a day, five days a week. See 20 C.F.R. §§ 404.1545(b)&(c), 416.945(b)&(c)(stating that when the Commissioner assesses a claimant's physical and mental abilities, "we... determine your [RFC] for work activity on a regular and continuing basis"); SSR 96-8p, 1996 WL 374184, at *1 ("Ordinarily, RFC is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis. A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule."); see also Burch, 400 F.3d at 683 (applying the "regular and continuing basis" standard). Dr. Pashman stated that as of November 20, 2004, plaintiff could return to work twenty hours a week, provided that she did not have to lift or carry more than ten pounds or engage in "prolonged" sitting, standing, or walking. [AR 280]. While less restrictive than the limitations Dr. Pashman assessed for the one-year period beginning on October 29, 2003, working twenty hours a week is not equivalent to working "8 hours a day, for 5 days a week," as generally contemplated by the definition of RFC. See SSR 96-8p, 1996 WL 374184, at *7 & n.7. Dr. Pashman estimated that plaintiff could return to work full-time as of May 1, 2005, provided that she did not have to lift or carry more than fifteen pounds. [AR 280]. Plaintiff concedes that Dr. Pashman's opinion indicates that she could perform sedentary work as of May 1, 2005 and therefore establishes that she was not disabled on or after that date. [JS 5].
The ALJ articulated reasons for rejecting in Dr. Pashman's May 2004 disability opinion. First, he said that it was inconsistent with a February 2004 letter from Dr. Pashman to Bryan Flyer, M.D., another of plaintiff's treating physicians, and that "there are no progress records from Dr. Pashman showing an increase in [plaintiff's] signs and symptoms" between February 26, 2004 and May 10, 2004. [See AR 27, 283, 652-727]. In his letter to Dr. Flyer, Dr. Pashman remarked that plaintiff was status post hemilaminectomy on October 29, 2003 for significant left L5 radiculopathy, and that she also had adult idiopathic scoliosis. He added that plaintiff reported "today, that the radiculopathy is much improved." [AR 283]. He noted that plaintiff has "global body pain that is unrelated to the radiculopathy," and that if the "two major curves" caused by her scoliosis "could be stabilized," that would help her neck and upper back pain because of the coronal plane decompensation. Clearly, at this point, though, the radiculopathy is better, for which she originally came to see me. I will return her to work without significant restrictions, and if she wants surgery on her adult idiopathic scoliosis at some point, we will consider it for her. [AR 283]. A contemporaneous examination report indicated that plaintiff ...