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Pamela S. Plumb v. Michael J. Astrue


March 24, 2011


The opinion of the court was delivered by: Hon. Jay C. Gandhi United States Magistrate Judge



On October 2, 2009, plaintiff Pamela S. Plumb ("Plaintiff") filed a complaint against defendant Michael J. Astrue ("Defendant"), the Commissioner of the Social Security Administration, seeking review of a denial of disability insurance benefits ("DIB"). [Docket No. 1.]

On May 25, 2010, Defendant filed his answer, along with a certified copy of the administrative record. [Docket Nos. 23, 24, 25.]

In sum, having carefully studied, inter alia, the parties' joint stipulation and the administrative record, the Court concludes that, as detailed below, the Administrative Law Judge ("ALJ") improperly evaluated the opinion of Plaintiff's treating physician. The Court thus remands this matter to the Commissioner in accordance with the principles and instructions enunciated in this Memorandum Opinion and Order.


Plaintiff, who was 57 years old on the date of her administrative hearing, has completed high school and some college. (See Administrative Record ("AR") at 52, 57, 124, 127.)

On June 17, 2005, Plaintiff filed for DIB, alleging that she has been disabled since October 1, 2003 due to neck, back, rib and multiple joint pain and mental health problems. (See AR at 76, 77, 78, 85, 127.)

On April 3, 2007, Plaintiff, represented by counsel, appeared and testified at a hearing before an ALJ. (See AR at 52-75.) The ALJ also heard testimony from Susan Allison, a vocational expert ("VE"). (Id.)

On May 25, 2007, the ALJ denied Plaintiff's request for benefits. (AR at 31-39.) Applying the well-known five-step sequential evaluation process, the ALJ found, at step one, that Plaintiff has not engaged in substantial gainful activity since her alleged onset date. (Id. at 33.)

At step two, the ALJ found that Plaintiff suffers from severe impairments consisting of "back pain and osteoarthritis and allied disorders." (AR at 33 (emphasis omitted).)

At step three, the ALJ determined that the evidence did not demonstrate that Plaintiff's impairment, either individually or in combination, met or medically equaled the severity of any listing set forth in the Social Security regulations.*fn1 (AR at 33.)

The ALJ then assessed Plaintiff's residual functional capacity*fn2 ("RFC") and determined that she can perform light exertion work. (AR at 33.) Specifically, the ALJ found that Plaintiff can: occasionally lift and carry twenty pounds and frequently lift and carry ten pounds[;] sit, stand and walk for a total of six hours in an eight-hour workday[;] occasionally use the left upper extremities for pushing and pulling[;] occasionally climb stairs, bend, balance, stoop, kneel, crouch, and crawl, but never climb ladders or scaffolds[;] occasionally use the left upper extremities for gross manipulations[; and] never use the left upper extremities for reaching over head. (Id. (emphasis omitted).)

The ALJ found, at step four, that Plaintiff retained the ability to perform her past relevant work as an administrative assistant and administrative clerk. (AR at 38.) Thus, the ALJ concluded that Plaintiff was not suffering from a disability as defined by the Act. (Id. at 31, 39.)

Plaintiff filed a timely request for review of the ALJ's decision, which was denied by the Appeals Council. (AR at 3-6, 26.) The ALJ's decision stands as the final decision of the Commissioner.


This Court is empowered to review decisions by the Commissioner to deny benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security Administration must be upheld if they are free of legal error and supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001, as amended Dec. 21, 2001). If the court, however, determines that the ALJ's findings are based on legal error or are not supported by substantial evidence in the record, the court may reject the findings and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001).

"Substantial evidence is more than a mere scintilla, but less than a preponderance." Aukland, 257 F.3d at 1035. Substantial evidence is such "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d at 459. To determine whether substantial evidence supports the ALJ's finding, the reviewing court must review the administrative record as a whole, "weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion." Mayes, 276 F.3d at 459. The ALJ's decision "'cannot be affirmed simply by isolating a specific quantum of supporting evidence.'" Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the evidence can reasonably support either affirming or reversing the ALJ's decision, the reviewing court "'may not substitute its judgment for that of the ALJ.'" Id. (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)).


Three disputed issues are presented for decision here:

1. whether the ALJ properly evaluated the opinion of Plaintiff's treating physician, (see Joint Stip. at 4-15, 17-18);

2. whether the ALJ failed to properly assess Plaintiff's credibility, (see id. at 19-21, 24-25); and

3. whether the ALJ failed to properly assess Plaintiff's RFC by excluding limitations resulting from the combined effect of Plaintiff's impairments. (Id. at 4.)

Under the circumstances here, the Court finds the issue of the ALJ's evaluation of the medical evidence to be dispositive of this matter, and does not reach the remaining issues.


A. Evaluation of the Medical Evidence

Plaintiff contends that "[i]t is clear that the ALJ was aware of [the opinion of treating physician Sanjay Deshmukh, M.D. ("Dr. Deshmukh")] as the ALJ discusses the findings of Dr. Deshmukh's assessments. Yet, the ALJ did not evaluate the opinions reached by Dr. Deshmukh." (Joint Stip. at 6.)

1. The ALJ Must Provide Specific and Legitimate Reasons Supported by Substantial Evidence to Reject a Treating Physician's Opinion

In evaluating medical opinions, Ninth Circuit case law and Social Security regulations distinguish among the opinions of three types of physicians:

(1) those who treat the claimant (treating physicians);

(2) those who examine but do not treat the claimant (examining physicians); and

(3) those who neither examine nor treat the claimant (non-examining physicians). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995, as amended April 9, 1996); see also 20 C.F.R. §§ 404.1527(d) & 416.927(d) (prescribing the respective weight to be given the opinion of treating sources and examining sources).

"As a general rule, more weight should be given to the opinion of a treating source than to the opinion of doctors who do not treat the claimant." Lester, 81 F.3d at 830; accord Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1036 (9th Cir. 2003). This is so because a treating physician "is employed to cure and has a greater opportunity to know and observe the patient as an individual." Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987).

Where the treating physician's "opinion is not contradicted by another doctor, it may be rejected only for 'clear and convincing' reasons." Benton, 331 F.3d at 1036; see also Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) ("While the ALJ may disregard the opinion of a treating physician, whether or not controverted, the ALJ may reject an uncontroverted opinion of a treating physician only for clear and convincing reasons.") (italics in original).

"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[.]" Lester, 81 F.3d at 830 (internal quotation marks and citation omitted); accord Reddick, 157 F.3d at 725.

The ALJ can meet the requisite specific and legitimate standard "by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (internal quotation marks and citation omitted). 2. The ALJ Improperly Evaluated Dr. Deshmukh's Opinion Having carefully reviewed the record and the joint stipulation, the Court is persuaded that the ALJ's assessment of Dr. Deshmukh's opinion is not legally sufficient and/or supported by substantial evidence. Four reasons guide this Court's determination.

First, the ALJ failed to provide specific and legitimate reasons supported by substantial evidence in rejecting treating physician Dr. Deshmukh's opinion. Lester, 81 F.3d at 830. In his opinion, the ALJ adopted the opinion of a consultative examiner*fn3 and rejected the opinion of treating physician Calvin B. Ross, D.C. (See AR at 38.) While the ALJ summarized portions of Dr. Deshmukh's opinion, he did not otherwise accept or reject Dr. Deshmukh's opinion. (See id. at 35-38.)

However, Dr. Deshmukh's opinion is not consistent with the ALJ's RFC assessment. For instance, on April 22, 2004, Dr. Deshmukh completed a primary treating physician's permanent and stationary report. (AR at 213-27.) Specifically, Dr. Deshmukh opined:

Pertaining to the patient's cervical spine, it is my opinion that the patient has sustained a permanent disability precluding repetitive motion of the neck. Pertaining to the patient's left shoulder, the patient has sustained a permanent disability precluding at and above-shoulder level work. Pertaining to the patient's left elbow, the patient has sustained a permanent disability precluding repetitive motion of the arm. Pertaining to the patient's left wrist, the patient has sustained a permanent disability precluding gripping, grasping, and torquing. Pertaining to the patient's lumbar spine, it is my opinion that the patient has sustained a disability precluding heavy work. (Id. at 226.)

The ALJ's RFC assessment made no reference to a restriction in neck movement, nor did he preclude Plaintiff from pushing and pulling, or lifting and carrying with her left arm. (Compare AR at 33 (ALJ finding that Plaintiff can "occasionally lift and carry twenty pounds and frequently lift and carry ten pounds," "occasionally use the left upper extremities for pushing and pulling" and "gross manipulations") with id. at 226.)

Accordingly, the ALJ implicitly rejected Dr. Deshmukh's opinion. See also Smith ex rel. Enge v. Massanari, 139 F. Supp. 2d 1128, 1133 (C.D. Cal. 2001) (reliance on one physician's opinion in making a finding, which differs from that of another physician, is an implicit rejection of the latter). In so doing, the ALJ committed reversible error by failing to provide any reason, let alone a specific and legitimate one, for disregarding the opinion of Dr. Deshmukh, who treated Plaintiff for over one year and six months during the relevant time period, performed extensive examinations of Plaintiff's cervical and lumbar spine, and ordered various testing to be performed. (See AR at 213-227, 316-27, 460-66); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987, as amended Aug. 4, 1988) ("We find nothing in the ALJ's decision which indicates why [the treating physician's] medical findings, reports, and opinion were disregarded. Because the ALJ did not state reasons based on substantial evidence, we reverse the decision to deny benefits.").

Second, to the extent the ALJ rejected Dr. Deshmukh's opinion based on his conclusion that "the clinical signs and findings in this record do not support the restrictions" of Plaintiff's treating physicians, (see AR at 38), his assessment is impermissibly broad and conclusory and "does not achieve the level of specificity" required to justify his rejection of a treating physician's opinion. See McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989, as amended Oct. 19, 1989) (ALJ's rejection of treating physician's opinion on the ground that it was contrary to the clinical findings in the record was "broad and vague, failing to specify why the ALJ felt the treating physician's opinion was flawed."); Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) ("Merely to state that a medical opinion is not supported by enough objective findings does not achieve the level of specificity our prior cases have required, even when the objective factors are listed seriatim.") (internal quotation marks and citation omitted).

Third, while the ALJ did acknowledge at the administrative hearing that Dr. Deshmukh treated Plaintiff in the context of her workers' compensation claim, (AR at 73), he failed to indicate that he recognized the differences between the relevant state workers' compensation terminology, on the one hand, and the relevant Social Security disability terminology, on the other hand, and accounted for those differences in evaluating the medical evidence. (See generally id. at 31-39); see Booth v. Barnhart, 181 F. Supp. 2d 1099, 1106 (C.D. Cal. 2002); see also Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) ("The categories of work under the Social Security disability scheme are measured quite differently[ than under the California workers' compensation system]. . . . It is clear from the record that the ALJ did not adequately consider this distinction.").

Defendant argues that "the ALJ did not disregard Dr. Deshmukh's opinion, but rather, with the assistance of the State agency physician, translated it into a formulation that is applicable to the Social Security disability context." (Joint Stip. at 16.) Defendant contends that the "ALJ based his [RFC] findings on the opinion of the State agency physician, H. Estrin, M.D. [("Dr. Estrin")], who reviewed the entire record, including Dr. Deshmukh's report." (Id.) Defendant's assertion is not well-taken.

The Court's review is limited to the reasons actually cited by the ALJ in his decision. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) ("We review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely."). Here, the ALJ did not explicitly cite to Dr. Estrin's assessment anywhere in his opinion. (See generally AR at 31-39.)

In any event, the Court fails to find any indication in Dr. Estrin's eight-page checklist RFC assessment form that demonstrates he properly "translated" Dr. Deshmukh's use of workers' compensation terminology, nor did the ALJ acknowledge such a translation. (See generally AR at 35-38, 512-19); see Payan v. Chater, 959 F. Supp. 1197, 1204 (C.D. Cal. 1996) ("[T]he ALJ failed to properly consider [treating physician's] use of workers' compensation terminology. . . . Thus, the ALJ's findings that plaintiff has only slight mental limitations and 'mild' deficiencies in concentration are not supported by substantial evidence.").

Further, while the ALJ's RFC assessment is supported by non-examining physician Dr. Estrin's opinion, Dr. Estrin's opinion is not consistent with Dr. Deshmukh's RFC findings. As noted above, Dr. Deshmukh's opinion conflicted with the ALJ's RFC assessment and similarly Dr. Estrin's opinion, in that Dr. Deshmukh imposed more restrictions on Plaintiff's neck movement and ability to use her left arm. (Compare AR at 512-19 (Dr. Estrin's RFC assessment form) with id. at 213-227, 316-27, 460-66.)

Moreover, because there is no evidence in the record that is consistent with non-examining physician Dr. Estrin's assessment, his opinion cannot constitute substantial evidence supporting the ALJ's RFC assessment. See Lester, 81 F.3d at 832 ("In the absence of record evidence to support it, the nonexamining medical advisor's testimony does not by itself constitute substantial evidence that warrants a rejection of . . . the treating doctor's . . . opinion."); Erickson v. Shalala, 9 F.3d 813, 818 n.7 (9th Cir. 1993) ("the non-examining physicians' conclusion, with nothing more, does not constitute substantial evidence") (internal quotation marks, brackets and citation omitted) (italics in original).

Finally, Defendant argues that any error the ALJ committed "in translating the state worker's compensation work restrictions opined by Dr. Deshmukh[] . . . was harmless because the ultimate outcome of the case would not change." (Joint Stip. at 16.) Defendant contends that the ALJ posed several hypothetical questions to the VE, one of which "included the limitations in Dr. Deshmukh's opinion," and the VE "stated that Plaintiff would still be able to perform her past relevant jobs." (Id.; see also AR at 73.)

The Court cannot find this error to be harmless, as it may have impacted the ALJ's determination, among other issues, of the credibility of Plaintiff's testimony concerning the pain she experiences and her physical limitations. The ALJ's finding that her testimony was not credible may very well change in light of corroborating medical evidence from a treating physician.


This Court has discretion to remand or reverse and award benefits. McAllister, 888 F.2d at 603. Where no useful purpose would be served by further proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000, as amended May 4, 2000), cert. denied, 531 U.S. 1038 (2000). Where there are outstanding issues that must be resolved before a determination can be made, and it is not clear from the record that the ALJ would be required to find plaintiff disabled if all the evidence were properly evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; Harman, 211 F.3d at 1179-80.

Here, remand is required because the ALJ failed to properly evaluate Dr. Deshmukh's opinion.

Because the Court concludes that the ALJ erred in rejecting Dr. Deshmukh's opinion, it does not reach Plaintiff's remaining contentions. (See Joint Stip. at 4, 19-21, 24-25.) Credibility and RFC findings are reviewed in light of the record as a whole. See Hayes v. Astrue, 270 Fed.Appx. 502, 505 (9th Cir. 2008). Accordingly, on remand, the ALJ must reconsider Plaintiff's credibility and reassess her RFC. In addition, if necessary, the ALJ shall obtain additional information and clarification regarding Plaintiff's functional limitations. The ALJ shall reassess the medical opinions in the record and provide sufficient reasons under the applicable legal standard for rejecting any portion of the medical opinions.

Based on the foregoing, IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision.

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