The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. District Judge
ORDER OVERRULING OBJECTIONS AND ADOPTING REPORT AND RECOMMENDATION [Doc. Nos. 27, 28 and 35]
On August 9, 2011, Judge Adler filed a Report and Recommendation (hereinafter "R&R") [Doc. No. 27] containing findings and conclusions, upon which he bases his recommendation that the Court grant in part and deny in part Plaintiff's motion for summary judgment [Doc. No. 17], grant in part and deny in part Defendant's cross-motion for summary judgment [Doc. No. 20], and remand this matter to the Social Security Administration for further proceedings. Defendant filed a timely objection [Doc. No. 28] to the R&R and moves this Court to affirm the ALJ's decision and enter judgment in favor of Defendant and against Plaintiff. The Plaintiff filed a reply [Doc. No.35]. For the reasons set forth below, the Court OVERRULES Defendant's objections, Doc. No. 28, and ADOPTS the Report and Recommendation in its entirety.
Plaintiff filed an application for Social Security Disability Income ("SSDI") benefits on January 26, 2006, alleging a disability onset date of July 1, 2005. Plaintiff alleges disability due to major depression, panic and anxiety attacks, and post traumatic stress disorder. The Social Security Administration initially denied Plaintiff's disability claim on June 23, 2006, and again upon reconsideration on February 13, 2007. Following the denials, Plaintiff protectively filed an application for Supplemental Security Income ("SSI") benefits, and requested a hearing before an ALJ. Plaintiff's first hearing before ALJ Bernard A. Trembly was continued because a large number Plaintiff's medical records had not been made available to the medical expert prior to the hearing. A second administrative hearing was conducted on July 23, 2008, by ALJ James S. Carletti. This appeal involves the ALJ Carletti's decision to deny Plaintiff SSI benefits.
On July 15, 2009, Plaintiff Gracie Wader filed this appeal pursuant to Section 405(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking review of an Administrative Law Judge's (ALJ) decision to deny Plaintiff her Supplemental Security Income ("SSI") benefits. The matter was referred to Magistrate Judge Adler for preparation of a Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1.
In her motion for summary judgment, the Plaintiff argued the ALJ's decision was not supported by substantial evidence. Specifically, Plaintiff argued that the ALJ: (1) failed to provide specific and legitimate reasons for rejecting the opinion of the treating psychiatrist and treating physicians; (2) failed to reject Plaintiff's testimony with specific, clear, and convincing reasons; (3)failed to adequately consider Plaintiff's son's lay testimony; and (4) erred in failing to consider medical evidence of Plaintiff's bilateral carpal tunnel syndrome. The magistrate judge agreed as to Plaintiff's first three contentions and found the ALJ's decisions constituted legal error and were not supported by substantial evidence in the record as a whole. As to Plaintiff's fourth contention, however, the magistrate judge found Plaintiff did not establish bilateral carpal tunnel syndrome as a severe impairment.
While the responsibility to make a final determination remains with the assigned district judge, the Court finds that the R&R sets forth in accurate detail the relevant facts and standards of law on this matter, and the Court incorporates such without further recitation. Mathews v. Weber, 423 U.S. 261, 271 (1976).
The Defendant filed objections to the R&R and requested, pursuant to 28 U.S.C. § 636(b)(1)(C),*fn1 the Court review de novo whether: (1) Dr. Bolter's opinion constituted substantial evidence and whether it was proper for ALJ to reject the treating physicians' opinions; (2) the ALJ provided sufficient reasons for finding plaintiff's testimony not credible; and (3) the ALJ properly rejected Plaintiff's son's statement.
1. Whether Dr. Bolter's opinion constituted substantial evidence and whether it was proper for ALJ to reject treating physicians' opinions
The Defendant argues that the R&R incorrectly asserted two principal errors in the ALJ's analysis: (1) that the ALJ provided insufficient articulation of the weight he gave to these opinions; and (2) that the ALJ relied on testifying medical expert Dr. Bolter's testimony, whose opinion did not constitute substantial evidence. The Court is not persuaded by the Defendant's argument.
The Court has reviewed the record and finds that the ALJ did not meet his burden of articulating specific and legitimate reasons for rejecting plaintiff's treating physicians' opinions. Dr. Bolter's opinion constitutes substantial evidence on which the ALJ can rely only if it is based on independent clinical findings that differ from those of the treating physicians. If it is not based on such independent clinical findings, then the ALJ needs to provide clear and convincing reasons for rejecting the treating physicians' opinions. Andrews v. Shalala, 53 F.3d 1035 (9th Cir. 1995)( citing Magallanes, 881 F.2d at
The question then is whether Dr. Fijman's opinion from May 16, 2006 qualifies as an independent clinical finding that provides a proper basis for Dr. Bolter's opinion.
In Allen v. Heckler, the court stated that "the fact that the government calls in and remunerates consultative physicians does not undermine the independence of those physicians' opinions because the Social Security Administration is an adjudicator, not advocate or adversary." 749 F. 2d 577 (9th Cir. 1984). However, the Ninth Circuit explains that, if the findings of the non-treating physician are the same as those of the treating physicians, but only their conclusions differ, then the ALJ is bound by a higher standard and has to give clear and convincing reasons for rejecting the treating physicians' ...