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Maria Polanco v. Michael J. Astrue

January 13, 2011

MARIA POLANCO,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
DEFENDANT.



The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Plaintiff appeals a decision by Defendant Social Security Administration ("the Agency"), denying her applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). She claims that the Administrative Law Judge ("ALJ") erred when she ignored the functional assessment of treating physician Sean Leoni and when she found that Plaintiff was not credible. (Joint Stip. at 4, 10.) For the reasons discussed below, the Agency's decision is REVERSED and the case is REMANDED for further proceedings.

II. SUMMARY OF PROCEEDINGS

On April 1, 2004, Plaintiff protectively filed for DIB and SSI. (Administrative Record ("AR") 61-63.) After the Agency denied the applications initially and on reconsideration, she requested and was granted an administrative hearing. (AR 48-60.) On January 22, 2007, Plaintiff appeared with counsel at the hearing and testified. (AR 435-71.) On February 6, 2007, the ALJ issued a decision denying her applications. (AR 13-20.) On July 3, 2008, the Appeals Council denied Plaintiff's request for review. (AR 6-8.) Plaintiff then commenced this action.

III. ANALYSIS

1. The ALJ's Failure to Consider the Treating Doctor's Opinion In her first claim of error, Plaintiff contends that the ALJ's failure to provide any reasons, let alone specific and legitimate ones, for rejecting a treating doctor's opinion compels remand. (Joint Stip. at 5-7.) For the following reasons, the Court agrees.

An ALJ is required to take into account a treating doctor's opinion in formulating her decision as to whether a claimant is disabled. In order to reject a treating doctor's opinion that is contradicted by another doctor's opinion, the ALJ must provide "specific and legitimate" reasons for doing so. See Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).

Dr. Sean Leoni, an internist, was one of Plaintiff's treating doctors. He saw her eight times between September 2002 and April 2004, each time preparing and submitting reports for Plaintiff's Worker's Compensation case. (AR 206-45.) Dr. Leoni diagnosed a number of impairments during this period, including hypertension, morbid obesity, gastroesophageal reflux disease, irritable bowel syndrome, and an orthopedic condition. (AR 242.) He believed that Plaintiff's reflux disease and irritable bowel syndrome had been "aggravated, accelerated, and lit up" by stress from work and concluded in September 2002 that she was totally temporarily disabled. (AR 244-45.)

In his final report in April 2004, Dr. Leoni determined that Plaintiff's disabling reaction to emotional stress meant that she should avoid contact with the public or fellow workers, as well as jobs giving rise to stressful situations, such as those involving deadlines, exasperating members of the public, precision, and attention to detail. (AR 212.) Dr. Leoni also opined that Plaintiff should have access to a bathroom and should avoid heavy work. (AR 212.)

The ALJ determined that Plaintiff could perform light work, with "occasional postural activities," meaning, consistent with the vocational expert's testimony, that Plaintiff could perform her past work as a teacher's aide and as a program director. (AR 18, 19.) The ALJ did not mention Dr. Leoni at all or explain how, despite Dr. Leoni's findings, Plaintiff was still capable of working as a teacher's aide or program director. This was error. The ALJ was not allowed to disregard Dr. Leoni's opinion without providing reasons for doing so. See Orn 495 F.3d at 632 ("Even if the treating doctor's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing 'specific and legitimate reasons' supported by substantial evidence in the record.")

The Agency argues that the error was harmless under Stout v. Comm. Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). (Joint Stip. at 8-9.) It offers its interpretation of the evidence and argues that, since there were several possible interpretations of the evidence, the ALJ's interpretation should be upheld, citing Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). (Joint Stip. at 9.) The Agency clearly misses the mark here. The ALJ did not provide a different interpretation of Dr. Leoni's submissions--she provided no interpretation. Based on a review of the four corners of the ALJ's decision, it is not clear whether she ever even read Dr. Leoni's reports, never mind considered them in her decision. And the issue here is not one involving lay testimony--which, although competent evidence, does not typically drive a disability determination---as in Stout. The ALJ's oversight in this case was the treating doctor's opinion. As the Agency knows, the treating doctor's opinion, all other things being equal, is entitled to deference and often dictates the outcome of a case. For these reasons, the Court concludes that the ALJ's error was not harmless. The Court will not, however, grant Plaintiff's request to credit the treating doctor's opinion and order the Agency to award benefits. Remand for an award of benefits is only warranted in this context where the ALJ failed to provide adequate reasons for rejecting the evidence, there are no outstanding issues that need to be resolved, and it is clear that claimant is entitled to relief. See Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996.) Plaintiff has not met this standard. As such, the case will be remanded for further proceedings.

2. The ALJ's Credibility Determination In her second claim of error, Plaintiff contends that the ALJ failed to provide legally sufficient reasons for concluding that she was not credible. (Joint Stip. at 10-17.) For the following reasons, the Court finds that remand is warranted on this issue as well.

ALJ's are tasked with judging the credibility of witnesses. In making a credibility determination, an ALJ may take into account ordinary credibility evaluation techniques. Smolen, 80 F.3d at 1284. Where, as here, a claimant has produced objective medical evidence of an impairment which could reasonably be expected to produce the symptoms alleged and there is no evidence of malingering, the ALJ can only reject the claimant's testimony for specific, clear, and convincing reasons. Id. at 1283-84. In making a credibility determination, the ...


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