The opinion of the court was delivered by: Robert N. Block United States Magistrate Judge
ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR PAYMENT OF BENEFITS
Plaintiff filed a Complaint herein on June 17, 2010, seeking review of the Commissioner's denial of his applications for disability insurance and Supplemental Security Income benefits. In accordance with the Court's Case Management Order, the parties filed a Joint Stipulation ("Jt Stip") on February 24, 2011. Thus, this matter now is ready for decision.*fn1
As reflected in the Joint Stipulation, the disputed issues that plaintiff is raising The decision in this case is being made on the basis of the pleadings, the as the grounds for reversal and remand are as follows:
1. Whether the Administrative Law Judge ("ALJ") properly considered the opinions of Dr. Gary Frykman, M.D., a board-certified orthopedic surgeon who examined plaintiff on April 28, 2008 as an Agreed Medical Examiner for plaintiff's worker's compensation claim..
2. Whether the ALJ properly assessed the opinions of Dr. Edwin Ashley, M.D., a board-certified orthopedic surgeon who specialized in hand surgery.
3. Whether the ALJ properly considered the December 5, 2008 opinions of State agency physician A. Wong, M.D.
4. Whether the ALJ properly assessed the medical evidence. 5. Whether the ALJ properly assessed the credibility of plaintiff and his wife.
6. Whether the ALJ properly addressed the April 2, 2009 opinions of Dr. Ana-Maria Osorio, M.D., plaintiff's treating psychiatrist.
7. Whether the ALJ properly assessed plaintiff's mental capacity.
A. Reversal is not warranted based on the ALJ's alleged failure to properly assess the medical evidence.
In Disputed Issue No. 4, plaintiff contends that the ALJ failed to "fully" address "the evidence of plaintiff's surgeries since the 2005 onset date and the follow up for them." (See Jt Stip at 21.) For the reasons stated by the Commissioner (see Jt Stip at 22-23), the Court finds and concludes that reversal is not warranted based on this particular alleged failure. The ALJ's February 12, 2010 decision reflects his consideration of the medical evidence that was added to plaintiff's file after the ALJ rendered his September 25, 2008 decision. (See AR 14-18.) The ALJ's September 25, 2008 decision (which the ALJ purported to incorporate by reference into his 2010 decision, see AR 14) reflects the ALJ's consideration of the earlier medical evidence. (See AR 62-64.) To the extent that plaintiff disagrees with the ALJ's assessment of the medical evidence, the Court will address plaintiff's specific contentions in the next sections.
B. Reversal is not warranted based on the ALJ's alleged failure to properly consider Dr. Frykman's opinions.
With respect to Disputed Issue No. 1, the Court concurs with plaintiff that the ALJ impliedly rejected Dr. Frykman's opinions on plaintiff's work restrictions by failing to incorporate all of those functional limitations into his RFC determination. In particular, the ALJ failed to incorporate Dr. Frykman's preclusion of "continuous, repetitive neck movement." The ALJ also failed to incorporate Dr. Frykman's preclusion of "forceful gripping, pushing, pulling, torquing, or continuous finger motion activities with either wrist or hand," although the ALJ did preclude "work requiring repetitive, forceful grasping." (Compare AR 928 to AR 12.)
To reject the uncontradicted opinion of an examining physician, an ALJ must provide "clear and convincing" reasons. Even if contradicted by another doctor, the opinion of an examining doctor can only be rejected for "specific and legitimate" reasons that are supported by substantial evidence in the record. See Regennitter v. Commissioner, 166 F.3d 1294,1298-99 (9th Cir. 1999); Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995); see also Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Thus, the fact that certain of the work restrictions to which Dr. Frykman opined may have been contradicted by the opinion of Dr. Boeck, the orthopedic consultative examiner (see AR 1980-85) to whose opinions the ALJ accorded "significant" weight (see AR 17) was not in itself a sufficient reason for rejecting the work restrictions to which Dr. Frykman opined, but rather merely was determinative of the governing standard for doing so.
Here, it appears to the Court that the only comments made by the ALJ in his February 12, 2010 decision that could possibly be deemed "reasons" for rejecting the work restrictions to which Dr. Frykman opined were the ALJ's general comments to the effect that workers' compensation opinions are based on criteria other than Social Security Regulations and constitute opinions on an issue reserved to the Commissioner. (See AR 16.)
However, Dr. Frykman's opinions on plaintiff's work restrictions do not constitute opinions on an issue reserved to the Commissioner. Further, the fact that Dr. Frykman's opinions were based on workers' compensation criteria was not a "specific and legitimate" reason for rejecting those opinions. See, e.g., Lester, 81 F.3d at 832 (holding that ALJ erred in rejecting a physician's reports because they "were clearly obtained by the claimant's attorney for the purpose of litigation," and stating that "[t]he purpose for which medical reports are obtained does not provide a legitimate basis for rejecting them"); Coria v. Heckler, 750 F.2d 245, 247-48 (3d Cir. 1984) (holding that ALJ erred in failing to consider medical reports submitted in state workers' compensation proceeding); Booth v. Barnhart, 181 F. Supp. 2d 1099, 1105 (C.D. Cal. 2002) (stating that "the ALJ may not disregard a physician's medical opinion simply because it was initially elicited in a state workers' compensation proceeding").
Nevertheless, the Court has concluded that the ALJ's error in failing to properly consider Dr. Frykman's opinions in itself does not warrant reversal of the Commissioner's decision. In his post-hearing vocational interrogatory, the ALJ did ask the vocational expert whether, considering the work restrictions to which Dr. Frykman had opined, there was any unskilled, entry level work that could be performed and the vocational expert responded in the affirmative, identifying three jobs existing in the regional and national economies that could be performed. (See AR 134-35.) The Court therefore finds that any error by the ALJ in failing to properly consider the work restrictions to which Dr. Frykman opined was harmless.
See Stout v. Commissioner of Social Security, 454 F.3d 1050, 1055 (9th Cir. 2006) (an ALJ's error is harmless where such error is inconsequential to the ultimate non-disability determination); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) ("A decision of the ALJ will not be reversed for errors that are harmless."); Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1991) (harmless error rule applies to review of administrative decisions regarding disability).
C. Reversal is not warranted based on the ALJ's alleged failure to properly assess Dr. Ashley's opinions.
For the same reasons the Court found that the ALJ impliedly rejected the work restrictions to which Dr. Frykman opined, the Court finds that the ALJ impliedly rejected the work restrictions to which Dr. Ashley opined in his August 28, 2008 Permanent and Stationary Status Report. (See AR 1092-93.) Moreover, for the same reasons the Court found that the ALJ erred in failing to properly consider Dr. Frykman's opinions, the Court finds that the ALJ erred in failing to properly consider Dr. Ashley's opinions.
However, because the Court finds that the hypotheticals posed to the vocational expert encompassed all the work restrictions to which Dr. Ashley opined, the Court also finds that any error by the ALJ in failing to properly consider the work restrictions to which Dr. Ashley opined was harmless.
D. Reversal is not warranted based on the ALJ's alleged failure to properly consider Dr. Wong's opinions.
With respect to Disputed Issue No. 3, the Court notes that, even if the ALJ erred in failing to properly consider Dr. Wong's opinion that plaintiff was limited to frequent handling and fingering, that limitation was no more restrictive than the handling and fingering work restrictions to which Drs. Frykman and Ashley opined. Accordingly, for the same reasons the Court found harmless any error by the ALJ in failing to consider the work restrictions to which Drs. Frykman and Ashley opined, the Court also finds harmless any error by the ALJ in failing to properly consider Dr. Wong's opinion that plaintiff was limited to frequent handling and fingering.
E. The Court is unable to affirm the ALJ's adverse credibility determinations.
Disputed Issue No. 5 is directed to the ALJ's adverse credibility determinations with respect to plaintiff and his wife.
At the first administrative hearing held on August 18, 2008, plaintiff testified in response to questions from his counsel that he had severe neck pain; that he had problems lifting things; that he had complete numbness in his hands, and severe pain in the wrist and elbows; that his fingers would get stuck together and sometimes lock; that he had problems lifting both arms; and that he had minimal movement in his wrists from side to side. (See AR 48-49.) Plaintiff further testified that he had problems with depression; that there were times when he had suicidal thoughts because of his physical condition; and that because of his pain and depression, he had problems concentrating and could not focus on things. (See AR 49.) The ALJ posed no questions to plaintiff at the first administrative hearing.
In his ensuing September 25, 2008 hearing decision, the ALJ found that "the claimant's medically determinable impairments could reasonably be expected to produce the alleged symptoms," but "the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the residual functional capacity assessment for the reasons explained below." (See AR 62.) The only statements made by the ALJ thereafter in the decision that appear to constitute "reasons" for not crediting plaintiff's subjective testimony were: (a) "[h]is current treatment through Kaiser is minimal and conservative with no suggestion for future surgeries or even epidural injections"; (b) "[t]he claimant's allegations are not fully credible or supported for causality by the medical evidence records"; and (c) "[t]he claimant's mental health treatment is minimal and conservative as evidenced by the medical records and the admissions of the claimant." (See AR 63.) However, it appears from statements made earlier in the decision that the ALJ also based his adverse credibility finding on "the discrepancy between the severity of the claimant's pain/depression complaints, and his actual treatment, and diagnostic and clinical test results," although the ALJ failed to specify precisely what he was referring to. (See AR 62.) It further appears from the following statements made earlier in the decision that the ALJ also based his adverse credibility finding on his perceptions of plaintiff's presentation and demeanor at the hearing:
"The claimant made a singular appearance and he affected a cervical pillow, like the kind sold in airport gift shops, and bilateral wrist gauntlets which looked unworn, as if they had just come out of the box. The claimant assumed a slumping position in the chair so that his face was almost at table level. It looked to be an affected and most uncomfortable ...