The opinion of the court was delivered by: Ralph Zarefsky United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff suffers from poorly controlled diabetes mellitus. Her blood sugars fluctuate wildly and uncontrollably, and she has hypoglycemic unawareness - meaning that she often does not know when her blood sugars have gotten so low that they are out of control. When her blood sugars get out of control, she can lose feeling in her limbs, or can be unexpectedly belligerent, or can lose consciousness. She has had to be hospitalized once, and frequently her husband has had to call 911 to revive her. She kept a careful log of her wildly fluctuating blood sugars, showing a large variation, often on an hourly basis. All of this was undisputed.
Plaintiff's physician Dr. Anderson treated Plaintiff over several years, and was familiar with and verified this history. He expressed his opinion that Plaintiff therefore was unable to work. [AR 370] Elsewhere he expressed this opinion in functional terms, that her activities were limited because of the unpredictable, varying and unrecognized nature of her hypoglycemic episodes [AR 393], facts which in his view made her unemployable.
The Administrative Law Judge rejected Dr. Anderson's opinion. The only comment that the Administrative Law Judge made about Dr. Anderson's opinion was that it would not be given any "special significance" "[b]ecause the determination of disability is exclusively reserved to the Commissioner." [AR 43] Instead, the Administrative Law Judge relied on the testimony of Dr. Sami Nafoosi, who testified as a medical expert who had reviewed the records but not examined Plaintiff. [AR 41, 43] Dr. Nafoosi (apparently erroneously identified as a board-certified internist), testified that there was no objective evidence that Plaintiff could not complete an eight-hour day or forty-hour work week or would miss three or more days of work in a month. [AR 70; AR 43] He also gave his opinion that from June 30, 2007 through December 31, 2008 Plaintiff could perform any work, with certain environmental restrictions; and that from January 1, 2009 to the present she additionally had certain lifting and other restrictions. [AR 68-69, 41] Dr. Nafoosi, the Administrative Law Judge noted, "had the opportunity to review the entire medical evidence and to hear the claimant's testimony." [AR 42]
The Administrative Law Judge's preference for Dr. Nafoosi's view over that of the doctor who had treated Plaintiff for years was not in keeping with the standards under the law. Merely dismissing Dr. Anderson's opinion out of hand because it was perceived as an opinion reserved to the Commissioner was not appropriate. As the Court said in Holohan v. Massanari, 246 F.3d 1195, 1202-03 (9th Cir. 2001):
[A]n ALJ may reject a treating physician's uncontradicted opinion on the ultimate issue of disability only with "clear and convincing" reasons supported by substantial evidence in the record. Reddick [v. Chater], 157 F.3d  at 725 [(9th Cir. 1998)] (quoting Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir.1993) (internal quotation marks omitted)). If the treating physician's opinion on the issue of disability is controverted, the ALJ must still provide "specific and legitimate" reasons in order to reject the treating physician's opinion. Id.
Nor is it appropriate to give preference to Dr. Nafoosi's opinion over that of Dr. Anderson. To begin with, the notion that Dr. Nafoosi had the entire record before him and heard Plaintiff testify is not a meaningful distinction. Dr. Anderson knew the medical record also, and there was no testimony about Plaintiff's medical condition that the Administrative Law Judge identified that was not familiar to Dr. Anderson as well. In addition, however, a medical expert who does not examine the claimant but merely reviews the records cannot trump the opinion of a treating physician.
"Generally, a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a reviewing physician's. Lester [v. Chater], 81 F.3d at 830; 20 C.F.R. § 404.1527(d)." Holohan, supra, 246 F.3d at 1202. But even an examining physician's opinion must give way to a treating physician's opinion when it is not based on independent findings. As the Court said in Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007):
When an examining physician relies on the same clinical findings as a treating physician, but differs only in his or her own conclusions, the conclusions of the examining physician are not "substantial evidence."
The Court went on to contrast that situation with the situation where the examining physician made his own independent findings, in which case the findings can stand as substantial evidence. The Court then explained that "[i]ndependent 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 . . . ." Id. (citations omitted.) The medical expert here just reviewed the records. He did not examine Plaintiff, and he did not make independent findings. Under Orn, his opinion cannot take precedence over that of the treating physician Dr. Anderson.
In addition, the Administrative Law Judge's reliance on Dr. Nafoosi's opinion rests on an underlying fallacious premise. Dr. Nafoosi gave little weight to the impact of Plaintiff's wildly fluctuating sugar levels, stating that "the criteria that we look at is that you have to - it has to be so severe that it requires frequent hospitalizations or emergency room visits, or that there are long-term complications from the diabetes that specifically affect the organs of the eye, the kidney, the ear or the nerves, and it doesn't - the records do not show that in your case." [AR 69] The Administrative Law Judge alluded to this testimony [AR 42] and, in this Court, the Commissioner points to this statement as evidence that Plaintiff has not proven that she is disabled. (Defendant's Memorandum in Support of Answer 4:2-4.) The Commissioner gives no citation to any regulation or case that says that end-organ damage or visits to the hospital are criteria for disability arising from diabetes. The Court has been able to discover nothing of the sort either. An internal Social Security Ruling giving examples of non-severe impairments does refer to end organ damage from diabetes, but that ruling was rescinded and not replaced. See SSR 82-55, 1982 WL 31375 (S.S.A.) Similarly, the Listing of Impairments in effect at the time of this decision refers to diabetes with certain damage to organs or limbs, see 20 C.F.R. Part 404, Subpart P, Appendix 1 at 9.08 (2010), but there is no dispute as to whether Plaintiff met a listing. On the other hand, Martin v. Secretary of Department of Health, Education and Welfare, 492 F.2d 905 (4th Cir. 1974), holds that end-organ damage cannot be a precondition for a finding of disability. If, then, Dr. Nafoosi grounded his view of Plaintiff's residual functional capacity on the criteria he identified - numbers of hospital visits and absence of end-organ damage - that was not a basis for undermining the opinion of the treating physician as to Plaintiff's inability to function in the workplace.
Therefore, the opinion cannot be substantial evidence in support of the Commissioner's decision, and her reliance on that opinion cannot justify upholding the decision.
Following the Administrative Law Judge's decision, the Appeals Council granted Plaintiff's request to submit additional information. [AR 1] The Appeals Council found that the new information did not provide a basis for changing the Administrative Law Judge's decision. [Id.] The administrative record before the Court therefore includes the entire record, including that before the Appeals Council when review was denied, and this Court reviews the entire record. Brewes v. ...