The opinion of the court was delivered by: David T. Bristow United States Magistrate Judge
ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS
The Court now rules as follows with respect to the two disputed issues listed in the Joint Stipulation.*fn1
With respect to Disputed Issue No. 1, the Court concurs with plaintiff that reversal is warranted based on the Administrative Law Judge's ("ALJ") failure to properly evaluate and consider the opinion of plaintiff's treating physician, Dr. Lim. In her Decision, the ALJ found that the plaintiff retained the residual functional capacity to perform light work, specifically finding that: She could sit for 6 hours; could lift and carry 20 pounds occasionally and 10 pounds frequently; and could occasionally bend, balance, stoop, kneel, crouch and crawl. (AR at 92.) In reaching this conclusion, the ALJ specifically rejected the opinion of the plaintiff's treating physician, Dee Beng Lim, M.D. (AR at 93-94). The ALJ found that Dr. Lim's "conclusions" contained in his letter of March 1, 2007, were "not credible" and were "rejected accordingly". (AR at 94). The ALJ based this finding on numerous factors. For example, the ALJ found that Dr. Lim's finding that the plaintiff was "totally disabled" was "excessive" and inconsistent with Dr. Lim's own objective findings noting that, while Dr. Lim noted significant subjective complaints of pain by the plaintiff, the MRI showed only "mild findings". The ALJ also found no objective basis for Dr. Lim's diagnosis of plaintiff suffering from "severe anxiety-depression". Finally, the ALJ found that Dr. Lim's treatment notes indicate plaintiff was taking only over-the-counter medication, and "refused" to take any other medications. (Id.)
The ALJ further rejected Dr. Lim's assessment of plaintiff's impairment contained in an undated spinal impairment questionaire, noting that "objective medical findings" did not support Dr. Lim's conclusion that plaintiff suffered from severe osteoarthritis of the lumbosacral spine with radiculopathy, and was unable to sit, stand or walk for more than one hour each day, and was also limited to lift or carry more than 10 pounds occasionally. (Id.) The ALJ noted that, contrary to Dr. Lim's assessment, the MRI did not show severe osteoarthritis, but, rather, revealed only "mild" findings. Moreover, the ALJ noted that there was no "consistent" evidence of gait abnormalities, motor or sensory deficits, or significant range of motion deficits. (Id.)
Instead, the ALJ relied primarily on the testimony of Joseph Jensen, M.D., who testified as a non-examining expert. Dr. Joseph concluded that the plaintiff could, inter alia, sit for six hours in an eight-hour period. (Id.)
It is well established in this Circuit that a treating physician's opinions are entitled to special weight because a treating physician is employed to cure and has a greater opportunity to know and observe the patient as an individual. See McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). "The treating physician's opinion is not, however, necessarily conclusive as to either a physical condition or the ultimate issue of disability." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The weight given a treating physician's opinion depends on whether it is supported by sufficient medical data and is consistent with other evidence in the record. See 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). If the treating physician's opinion is uncontroverted by another doctor, it may be rejected only for "clear and convincing" reasons. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996); Baxter v. Sullivan, 923 F.3d 1391, 1396 (9th Cir. 1991). Where the treating physician's opinion is controverted, it may be rejected only if the ALJ makes findings setting forth specific and legitimate reasons that are based on the substantial evidence of record. See Magallanes, 881 F.2d at 751; Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). Thus, the mere fact that a treating physician's opinion is controverted by another physician's opinion is not in itself a sufficient reason to reject the treating physician's opinion, but rather is merely determinative of the governing standard for rejecting the treating physician's opinion. See, e.g., Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) ("A treating physician's opinion on disability, even if controverted, can be rejected only with specific and legitimate reasons supported by substantial evidence in the record."); Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988).
The Court finds and concludes that the ALJ failed to follow the proper legal standards here when she failed to set forth the requisite specific and legitimate reasons for rejecting the treating physician's opinion of disability.
Here, the ALJ's Residual Functional Capacity ("RFC") determination constituted an implicit rejection of the opinions of plaintiff's treating physician, Dr. Lim. In his letter dated March 1, 2007, as well as in his treatment notes and the undated spinal impairment questionnaire, (see AR 269-293) Dr. Lim's observations of the plaintiff and his diagnosis consistently revealed the plaintiff was experiencing severe subject symptoms from her lower back symptoms (see e.g.AR at 320-321, March 20, 2007, letter indicating pain level of 8-9/10), and that her objective symptoms indicated degenerative disc disease and a bulging disc at the L5-S1 level. (Id.). The Court finds that the asserted reasons for disregarding the conclusions of Dr. Lim were not supported by specific and legitimate reasons, as required.
The spinal impairment questionaire reflects the conclusion of Dr. Lim that as a result of plaintiff's spinal impairment, she was markedly limited in numerous functional areas and extremely limited (i.e., lacked any "useful ability to function") in one functional area - the ability to sit for more than an hour - and that her impairments would cause her to be absent from work 3 days or more per month. (See AR 325, 327). Among the reasons given by the ALJ for finding that Dr. Lim's assessment is "not credible" was that Dr. Lim's opinion is "unsupported by objective medical findings." (See AR 94). If, by her reference to "objective medical findings," the ALJ was referring to the conflicting opinions of other physicians of record, the Court notes that the mere fact that a treating physician's opinion is controverted by another physician's opinion is not in itself a sufficient reason to reject the treating physician's opinion, but rather is merely determinative of the governing standard for rejecting the treating physician's opinion. Further, the ALJ's conclusory assertion to the effect that Dr. Lim's opinion(s) "as unsupported by objective medical findings" constitutes the same kind of non-specific boilerplate language rejected by the Ninth Circuit as insufficient in Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). There, the Ninth Circuit observed, "To say that 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, even when the objective factors are listed seriatim." Id. at 421.
With regard to Dr. Lim's finding that, as a result of the combination of the plaintiff's degenerative sacroiliac joint disease, bulging lumbar disc, obesity and coccydinia, she was precluded from, inter alia, sitting for more than one hour in an eight hour work day, the Court notes that the limitation on sitting was not controverted by any examining physician. Again, the ALJ failed to set forth specific and legitimate reasons, based on substantial evidence in the record, for rejecting Dr. Lim's finding. (See Magallens, 881 F.2d at 751).
The record reflects that Dr. Lim noted both plaintiff's spinal impairment and significant subject complaints of pain as of the first date of his treatment and examination of the plaintiff on October 28, 2005, (AR at 293) as well as on each of dates of treatment thereafter. The record reflects that Dr. Lim treated plaintiff for over two years, and ordered a variety of tests, including x-rays and an MRI, to ascertain the precise source of plaintiff's back pain. (See e.g. AR 287. 290-92.) The duration and nature of Dr. Lim's treatment of plaintiff would appear to support his diagnosis and opinions. Further, the ALJ's conclusion that plaintiff was "only" taking over-the-counter medication, and that she "refused" to take any other medications is belied by the record. Dr. Lim noted that the plaintiff previously took Soma, Felderil and Vicodin for her pain, but ceased because they were "too strong for her" (AR at 343; AR at 273.), and noted elsewhere that plaintiff "does not want to take any medications at this time" (AR at 288). This is consistent with the plaintiff's testimony at the hearing, in which she indicated that she stopped taking the prescription medication due to the side effects of vomiting, nausea and dizzyness, and her concern with possible addiction. (AR at 66). Thus, the ALJ failed to provide specific and legitimate facts to support her conclusion that Dr. Lim's opinions were not supported by record.
With regard to Disputed Issue No. 2, the ALJ's findings was that plaintiff's statements concerning the intensity, persistence and limiting effects of her symptoms were not credible to the extent that they were inconsistent with the ALJ's RFC assessment. (See AR 94-95). The reasons provided by the ALJ for this adverse credibility determination were: (1) Plaintiff has not established a medically- determinable impairment which would reasonably be expected to produce such limitations and (2) the fact that, in the ALJ's view, the objective medical findings generally did not substantiate the extent of plaintiff's allegations. (Id.)
At the hearing, plaintiff testified, inter alia, that her worst problem was that she "couldn't sit any longer and it was just very excruciating pain that I was encountering", and that she had radiating pain in her shoulders and wrists which inhibited her ability to grasp. (AR at 55-58). She also testified that she could not sit for more than 15 minutes without having to lie down, and that she could barely lift a half a gallon of milk. (AR 56). She also testified that she has pain in both of her knees, which has inhibited her ability to walk. (AR at 55).
Where the claimant has produced objective medical evidence of an impairment or impairments which could reasonably be expected to produce some degree of pain and/or other symptoms, and the record is devoid of any affirmative evidence of malingering, the ALJ may reject the claimant's testimony regarding the severity of the claimant's pain and/or other symptoms only if the ALJ makes specific findings stating clear and convincing reasons for doing so. See Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d ...