The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the Administrative Record ("AR") before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified AR.
Plaintiff raises the following issues:
1. Whether the Administrative Law Judge ("ALJ") properly considered the medical evidence of record; and
2. Whether the ALJ properly considered Plaintiff's testimony. (JS at 4.)
This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that for the reasons set forth, the decision of the Commissioner must be reversed and the matter remanded.
I THE ALJ DID NOT PROPERLY ASSESS THE OPINIONS OF TREATING AND EXAMINING PHYSICIANS
In this case, there is a substantial volume of medical information, including reports of examining and treating physicians, and reports of physicians who examined Plaintiff for purposes of his Workers Compensation ("WC") case. Generally, all of this evidence, including the WC information, must be evaluated in the context of a Social Security disability determination. (See Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 1988).
In Plaintiff's case, there is contradictory evidence as to his physical functional abilities. It is the ALJ's duty to review all of these opinions, and, based on this review, to come up with a conclusion as to Plaintiff's Residual Functional Capacity ("RFC"). The ALJ's conclusion with regard to a plaintiff's RFC may or may not adopt in whole the opinion of one medical source; rather, the RFC as defined will represent the ALJ's conclusion as to what is the most compelling and persuasive evidence, from all of the opinions reviewed. The question, however, is how the ALJ gets to this conclusion, and specifically, how he or she articulates it in the Decision. In this regard there are rules of interpretation which have been set out by the Ninth Circuit. The proverbial "godfather" of these opinions is Lester v. Chater, 81 F.3d 821 (9th Cir. 1995). That opinion sets out a hierarchy of medical sources, beginning with the proposition that the greatest weight is given to treating physicians, then examining physicians, then non-examining physicians. (Id. at 830.) Lester goes further, however, in instructing how an ALJ is to assess contradictory opinions of physicians who may be on an equal level, such as opinions of examining physicians. Here, Lester requires that an opinion of an examining doctor, if contradicted by another doctor, "can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the record." Id., citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995).
In a case where examining physicians render contradictory opinions on material issues such as lifting capacity, postural limitations, etc., it would be difficult to conceive of a case in which an ALJ would not even mention an opinion of an examining physician, yet adopt the contrary opinion of another physician. Theoretically, it might be possible that even without mentioning the opinion of the "rejected" physician, a decision might contain analysis which could constitute specific and legitimate reasons to reject that opinion. This is a difficult proposition, however, and one which an ALJ might pursue with the risk that his or her analysis will be later rejected when reviewed, for example, in a District Court case. Indeed, that is exactly the case here.
In discussing his first issue, Plaintiff outlines opinions of various treating, examining and non-examining physicians which were not even mentioned in the ALJ's decision. (See AR at 19-30.) These include the opinions of Dr. Greenspan, who treated Plaintiff, and rendered an opinion on December 5, 2006 (JS at 5, AR 197-237; 257-295; 556-652); Dr. Fabella, who performed a medical evaluation on July 19, 2006 at the request of the Department of Social Services (JS at 6, AR 526-531); Dr. Danufsky, who conducted the State Agency review (AR 533-538); and Dr. Akmakjian, who did a WC Agreed Medical Evaluation ("AME") on December 21, 2006 (AR 886-894). Finally, there is the opinion of Dr. Moazzaz, who performed an examination on September 27, 2008 at the request of the Department of Social Services. (AR 1009-1013.) Of these opinions, the ALJ only discussed that of Dr. Moazzaz (AR 25), and in addition relied upon examining physician Dr. Guevarra, who examined Plaintiff in February 2009. (AR 25, 1187-1209.)
In defending the ALJ's failure to mention, much less assess, any of the conclusions of the above-named physicians (with the exception of Dr. Moazzaz), the Commissioner takes contradictory positions. First, the Commissioner cites law that the ALJ is not required to discuss evidence that is neither significant nor probative (JS at 9, citing Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1010 (9th Cir. 2003)). This will hardly do, in that it is difficult to visualize a scenario in which a physician's assessment of a person's functional capacities and postural limitations is not significant or probative evidence. Indeed, after devoting scant space to this argument, the Commissioner then makes a second argument, which is that, at least with regard to Dr. Greenspan, the ALJ in fact did not reject that physician's functional limitations. (See AR at 9-10.) With regard to the rest of Dr. Greenspan's opinion, the Commissioner substantiates its implicit discounting by the ALJ by arguing that Dr. Greenspan's opinions were based strictly upon subjective factors relating to disability, and since the ALJ rejected Plaintiff's credibility, that would support the implicit rejection of the rest of Dr. Greenspan's opinion. (AR at 10.) This argument simply does not hold water. What the Commissioner is referencing with regard to subjective elements of Dr. Greenspan's analysis, as that term is used, largely concerns an assessment of Plaintiff's pain, which is always a subjective factor, but one which a physician may assess based upon objective evidence.
Aside from these brief and isolated references to Dr. Greenspan's opinion, the Commissioner glosses over the question of whether the ALJ's opinion contains specific and legitimate reasons to reject all the other opinions. As the Court has rejected the Commissioner's contention that these opinions do not constitute ...