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Vanessa Gonzalez v. Michael J. Astrue

July 5, 2011


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



Plaintiff Vanessa Gonzalez 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 determined that Plaintiff could perform light work and was not credible. (Joint Stip. at 3-6, 18-19.) For the reasons explained below, the Court concludes that the ALJ erred and remands the case to the Agency for further proceedings consistent with this decision.


In December 2006, Plaintiff applied for SSI and DIB, alleging that she had been disabled since October 31, 2006, due to pain, fatigue, and weakness from injuries sustained when she was hit by a tow truck. (Administrative Record ("AR") 5, 86-92.) The Agency denied her application initially and on reconsideration. (AR 51-54, 61-65.) She then requested and was granted a hearing before an ALJ. (AR 67-85.) On September 15, 2008, Plaintiff appeared with counsel at the hearing. (AR 30.) Plaintiff requested a closed period of disability because she planned to return to work on a part-time basis. (AR 32.) The ALJ denied this request. (AR 5.) Plaintiff and a vocational expert testified at the hearing. (AR 35-40.) On December 31, 2008, the ALJ issued a decision denying benefits. (AR 5-13.) Plaintiff appealed to the Appeals Council, which denied review. (AR 1-3, 14-17.) She then commenced the instant action.


A. The ALJ's Residual Functional Capacity Determination The ALJ determined that Plaintiff had the residual functional capacity to perform light work, with certain limitations.*fn1 (AR 9.) Plaintiff claims that the ALJ erred in finding that she could perform light work. She argues that the ALJ failed to take into account one of her treating physician's opinions and improperly discounted another in order to achieve this end. (Joint Stip. at 3-6.) For the following reasons, the Court agrees and remands the issue for further consideration.

1. Dr. Roth's Opinion

According to the ALJ, Plaintiff is capable of performing light work. (AR 9.) Light work is defined in the regulations as:

[L]ifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing or pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities.

20 CFR §§ 404.1567(b), 416.967(b).

The ALJ's finding that Plaintiff could perform this type of work is inconsistent with the opinion of Plaintiff's treating doctor, Bradley Roth, who concluded that Plaintiff was not capable of performing light work. (AR 462-65.) The ALJ did not mention Dr. Roth's opinion in reaching her decision, however. For the reasons explained below, the Court concludes that this was error.

"By rule, the [Agency] favors the opinion of a treating physician over non-treating physicians." Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007); see also Morgan v. Comm'r, 169 F.3d 595, 600 (9th Cir. 1999) (explaining that treating physician's opinion "is given deference because 'he is employed to cure and has a greater opportunity to know and observe the patient as an individual'" (quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987))). For this reason, a treating physician's opinion that is well-supported and not inconsistent with other substantial evidence in the record will be given controlling weight. Orn, 495 F.3d at 631; Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988). An ALJ may not reject the opinion of a treating physician that is contradicted by another physician "without providing 'specific and legitimate reasons' supported by substantial evidence in the record for so doing." Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)(quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). Nor can an ALJ avoid this requirement by simply ignoring the treating physician's opinion. Lingenfelter v. Astrue, 504 F.3d 1028, 1038 n.10 (9th Cir. 2007) ("Of course, an ALJ cannot avoid these requirements simply by not mentioning the treating physician's opinion and making findings contrary to it.").

Here, the ALJ's decision denying benefits completely ignored Dr. Roth's opinion. This was error. See, e.g., Lingenfelter, 504 F.3d at 1038 n.10; Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). The Agency argues that the error was harmless because: (1) Dr. Roth did not provide ongoing care or perform objective testing of Plaintiff's functional limitations; (2) Dr. Roth referred Plaintiff to a neurologist for evaluation; (3) Dr. Roth's opinion was conclusory and entitled to little weight; and (4) Dr. Roth's opinion would only have ...

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