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Sexton v. Astrue

May 6, 2010

PATRICIA ANN SEXTON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

MEMORANDUM OPINION AND ORDER OF REMAND

Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.

PROCEEDINGS

Plaintiff filed a complaint on October 21, 2009, seeking review of the Commissioner's denial of benefits. The parties filed a consent to proceed before a United States Magistrate Judge on November 12, 2009. Plaintiff filed a motion for summary judgment on March 24, 2010. Defendant filed a cross-motion for summary judgment on April 23, 2010. The Court has taken both motions under submission without oral argument. See L.R. 7-15; "Order," filed October 23, 2009.

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

Plaintiff alleges disability since December 11, 2006, based primarily on back pain and a fractured tailbone (Administrative Record ("A.R.") 23-33, 79-81). In a conclusory "Certificate of Disability, etc.," treating osteopath Niran Raval asserted that Plaintiff has been "disabled from 01-07 to current" and that Plaintiff "will not be able to return to previous employment" (A.R. 316).

The Administrative Law Judge ("ALJ") found Plaintiff has "a severe impairment of the musculoskeletal system from degenerative changes of the spine," but also found that Plaintiff is capable of returning to her past relevant work (A.R. 11-17). The ALJ reportedly "considered the certificate of disability and other references to 'off work orders' issued by Niran Raval, D.O., included in the treatment records from the ARMC Family Health Center . . ." (A.R. 15). The ALJ "gave no weight" to Dr. Raval's opinions, however, deeming those opinions to "have no probative value" (A.R. 15-16). While attempting to explain why the ALJ believed Dr. Raval's opinions to be valueless, the ALJ asserted that those opinions were "not supported by the objective evidence," were "on an issue reserved to the Commissioner," and "were based solely on [Plaintiff's] subjective complaints" (A.R. 15). The Appeals Council denied review (A.R. 1-3).

STANDARD OF REVIEW

Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used proper legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006).

DISCUSSION

A treating physician's conclusions "must be given substantial weight." Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) ("the ALJ must give sufficient weight to the subjective aspects of a doctor's opinion . . . This is especially true when the opinion is that of a treating physician") (citation omitted); see also Orn v. Astrue, 495 F.3d 625, 631-33 (9th Cir. 2007) (discussing deference owed to treating physician opinions). An osteopath qualifies as a treating physician. See, e.g., Sutherland v. Barnhart, 322 F. Supp. 2d 282, 291 (E.D.N.Y. 2004); Berry v. Secretary, 1986 WL 14600 at *4 (E.D.N.Y. December 11, 1986); see also 20 C.F.R. § 404.1513(a). Even where the treating physician's opinions are contradicted,*fn1 "if the ALJ wishes to disregard the opinion[s] of the treating physician he . . . must make findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987) (citation, quotations and brackets omitted); see Rodriquez v. Bowen, 876 F.2d at 762 ("The ALJ may disregard the treating physician's opinion, but only by setting forth specific, legitimate reasons for doing so, and this decision must itself be based on substantial evidence") (citation and quotations omitted).

Section 404.1512(e) of 20 C.F.R. provides that the Administration "will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, the report does not contain all of the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques." See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) ("If the ALJ thought he needed to know the basis of Dr. Hoeflich's opinions in order to evaluate them, he had a duty to conduct an appropriate inquiry, for example, by subpoenaing the physicians or submitting further questions to them. He could also have continued the hearing to augment the record") (citations omitted); see also Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) ("the ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered").

In the present case, the ALJ erred by rejecting Dr. Raval's opinions without stating specific, legitimate reasons for doing so, and without attempting to recontact Dr. Raval. The stated reason that the opinions assertedly were "not supported by the objective evidence" is insufficiently specific. See, e.g., McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) ("broad and vague" reasons for rejecting the treating physician's opinions do not suffice); Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988) ("To say that the medical opinions are not supported by sufficient objective findings or are contrary to the preponderant conclusions mandated by the objective findings does not achieve the level of specificity our prior cases have required . . .").

The ALJ's statement that Dr. Raval's opinions were "on an issue reserved to the Commissioner" also does not furnish a sufficient reason to reject the opinions. Although the ultimate issue of disability is reserved to the Administration, the ALJ still must set forth specific, legitimate reasons for rejecting a treating physician's opinion that a claimant is disabled. See Rodriguez v. Bowen, 876 F.2d 759, 762 n.7 (9th Cir. 1989) ("We do not draw a ...


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