The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DENYING COMMISSIONER'S MOTION TO ALTER OR AMEND THE JUDGMENT (Doc. 22)
Michael J. Astrue, Commissioner of Social Security, moves to alter or amend the Court's judgment in this case, pursuant to F.R.Civ.P. 59(e), to correct a manifest error of law or fact. The Commissioner contends that the Court erred in its assessment of (1) the treating physician's credibility and (2) Plaintiff's credibility, and erred (3) in directing the ALJ to further develop the record by obtaining a consultative examination. Although the Court agrees that, because of its poorly reasoned discussion of the physicians' opinions, its original opinion requires modification, the judgment remains unchanged.
Federal Rule of Civil Procedure 59(e) simply permits a motion to alter or amend a judgment if the motion is filed within 28 days of entry of judgment. A district court has broad discretion in considering a Rule 59(e) motion. Turner v. Burlington Northern Santa Fe R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003). One of the situations in which such a motion is appropriate is to correct a clear error of law or to prevent manifest injustice. Id. The rule gives the district court an opportunity to correct its own mistakes if it agrees with the moving party that it made a mistake. Zinkand v. Brown, 478 F.3d 634, 637 (4th Cir. 2007).
II. Plaintiff's Credibility
The Commissioner suggests that the Court could have agreed with the ALJ's assessment that Plaintiff was not credible by carefully examining the record as a whole to identify information in the medical records that was inconsistent with Plaintiff's testimony. A court's role is not to look at a record and somehow divine what an ALJ's reasoning must have been. If an ALJ decides to reject a claimant's testimony after a medical impairment has been established, the ALJ must make specific findings assessing the credibility of the claimant's subjective complaints. Ceguerra v. Secretary of Health and Human Services, 933 F.2d 735, 738 (9th Cir. 1991). "[T]he ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), quoting Varney v. Secretary of Health and Human Services, 846 F.2d 581, 584 (9th Cir. 1988). He or she must set forth specific reasons for rejecting the claim, explaining why the testimony is unpersuasive. Orn v,. Astrue, 495 F.3d 625, 635 (9th Cir. 2007). See also Robbins v. Social Security Administration, 466 F.3d 880, 885 (9th Cir. 2006). The credibility findings must be "sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony." Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). The ALJ did not do so here. Accordingly, the Court will not alter or amend its conclusion that the ALJ erred in finding Plaintiff's testimony to lack credibility.
III. Credibility of Plaintiff's Treating Physician
The factual content of the agency record was fully set forth in this Court's original opinion and will not be repeated here. The only physicians' opinions within the slim agency record in this case were the treatment notes and opinion of Plaintiff's treating physician, and agency case analyses countersigned by the agency's non-examining physicians.
Three types of physicians may offer opinions in social security cases: "(1) those who treat[ed] the claimant (treating physicians); (2) those who examine[d] but d[id] not treat the claimant (examining physicians); and (3) those who neither examine[d] nor treat[ed] the claimant (nonexamining physicians)." Lester, 81 F.3d at 830. A treating physician's opinion is generally entitled to more weight that the opinion of a doctor who examined but did not treat the claimant, and an examining physician's opinion is generally entitled to more weight than that of a non-examining physician. Id. The Social Security Administration favors the opinion of a treating physician over that of nontreating physicians. 20 C.F.R. § 404.1527; Orn, 495 F.3d at 631. A treating physician is employed to cure and has a greater opportunity to know and observe the patient. Sprague, 812 F.2d at 1230. Only two types of physicians offered opinions regarding Plaintiff's residual functional capacity: his treating physician, Reynaldo Garcia, M.D., and two non-examining agency reviewers, C.E. Lopez, M.D., and E.A. Fonte, M.D.
An ALJ may disregard the opinion of a treating physician even if it is uncontradicted. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). But if he or she chooses to do so, the ALJ must provide "specific and legitimate reasons" supported by substantial evidence in the record. Lester, 81 F.3d at 830-31. An ALJ can meet this requirement by setting forth a detailed and thorough factual summary, including all conflicting testimony; then articulating his or her interpretation of this evidence; and finally, setting forth his or her findings. Magallanes, 881 F.2d at 751. The regulations provide that medical opinions be evaluated by considering (1) the examining relationship; (2) the treatment relationship, including (a) the length of the treatment relationship or frequency of examination, and the (b) nature and extent of the treatment relationship; (3) supportability; (4) consistency; (5) specialization; and (6) other factors that support or contradict a medical opinion. 28 C.F.R. § 404.1527(d). The ALJ's rejection of Garcia's opinion did not rest on these factors. Instead, the ALJ rejected Garcia's opinion on general bases of credibility, finding that Garcia's determination of residual functional capacity was inconsistent both (1) with treatment records that described Plaintiff as doing well with medications and his illness as well-controlled and (2) with two letters that Garcia wrote "To Whom It May Concern" describing Plaintiff's illness as worsening and uncontrolled.
Just as with the claimant, "the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Lester, 81 F.3d at 834, quoting Varney, 846 F.2d at 584. He or she must set forth specific reasons for rejecting the claim, explaining why the testimony is unpersuasive. Orn, 495 F.3d 625, 635 (9th Cir. 2007). The credibility findings must be "sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony." Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). In its original opinion, this Court observed that Garcia's treatment notes were ambiguous and that the ALJ failed to address inconsistencies between the language used in the treatment notes and Garcia's two letters.
At this point, the Court's original opinion failed to clearly articulate its reasoning. The language of the opinion appears to attribute the ALJ's error to his rejection of Garcia's opinion. The ALJ's error was not in rejecting Garcia's opinion but in concluding, based on the opinions of Fonte and Lopez, that Plaintiff had no exertional limitations. Substantial evidence did not support the conclusion that Plaintiff, who experienced severe shortness of breath and resulting fatigue, could perform work at any exertion level.
Lopez's and Fonte's opinions consisted of their signing their agreement to two-page case analyses prepared by agency staff members. Nothing suggests that either physician reviewed Plaintiff's medical records independent of the summary provided in the case analysis signed by that physician. Both analyses set forth incomplete summaries of objective evidence within Plaintiff's agency record. Neither physician provides any thoughtful assessment, backed by independent objective testing or assessment, of Plaintiff's residual functional capacity.
Opinions of nontreating physicians are only substantial evidence when they are supported by independent clinical findings and objective tests. Magallanes, 881 F.2d at 751. "Independent clinical findings can be either (1) diagnoses that differ from those offered by another physician and that are supported by substantial evidence, or (2) findings based on objective medical tests that the treating physician has not herself considered." Orn, 495 F.3d at 632 (citations omitted). Because both agency physicians agreed with ...