United States District Court, C.D. California
MEMORANDUM OPINION AND ORDER OF REMAND
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE
to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY
ORDERED that Plaintiff's and Defendant's motions for
summary judgment are denied, and this matter is remanded for
further administrative action consistent with this Opinion.
filed a Complaint on November 1, 2016, seeking review of the
Commissioner's denial of benefits. The parties filed a
consent to proceed before a United States Magistrate Judge on
December 2, 2016.
filed a motion for summary judgment on April 7, 2017.
Defendant filed a motion for summary judgment on May 8, 2017.
The Court has taken both motions under submission without
oral argument. See L.R. 7-15; “Order, ”
filed November 7, 2016.
13, 2010, Plaintiff applied for disability insurance benefits
and supplemental security income, alleging disability
beginning January 14, 2005 (Administrative Record
(“A.R.”) 152-62). Plaintiff presented, among
other evidence, a July 24, 2006 report authored by his
treating orthopedist, Dr. Michael P. Rubinstein (A.R.
441-44). Dr. Rubinstein opined, inter alia, that
Plaintiff's orthopedic impairments restricted Plaintiff
to work that would not require the lifting of more than 15
pounds (A.R. 443).
September 7, 2012, an Administrative Law Judge
(“ALJ”) rejected Dr. Rubinstein's opinion
regarding Plaintiff's lifting restriction (A.R. 26-27).
The ALJ stated as reasons for this rejection the fact that
Dr. Rubinstein's report had been “created for
workers' compensation purposes” and the fact that
Dr. Concepcion Enriquez, a non-treating physician,
subsequently opined Plaintiff could perform “light
exertional work, ” i.e. work requiring the
lifting of 20 pounds (A.R. 26-27). The ALJ identified certain
light work jobs Plaintiff assertedly could perform, and, on
that basis, denied disability benefits (A.R. 28-30). On April
3, 2014, the Appeals Council denied review (A.R. 1-3).
January 21, 2015, this Court reversed and remanded for
further administrative proceedings (A.R.
797-807). The Court held that the ALJ erred in
connection with the ALJ's consideration of Dr.
Rubinstein's opinion, stating:
The law is well established in this Circuit that a treating
physician's opinions are entitled to special weight
because a treating physician is employed to cure and has a
greater opportunity to know and observe the patient as an
individual. See McAllister v. Sullivan, 888 F.2d
599, 602 (9th Cir. 1989). “The treating physician's
opinion is not, however, necessarily conclusive as to either
a physical condition or the ultimate issue of
disability.” Magallanes v. Bowen, 881 F.2d
747, 751 (9th Cir. 1989). The weight given a treating
physician's opinion depends on whether it is supported by
sufficient medical data and is consistent with other evidence
in the record. See 20 C.F.R. §§
404.1527(d)(2), 416.927(d)(2). If the treating
physician's opinion is uncontroverted by another doctor,
it may be rejected only for “clear and
convincing” reasons. See Lester v. Chater, 81
F.3d 821, 830 (9th Cir. 1996); Baxter v. Sullivan,
923 F.3d 1391, 1396 (9th Cir. 1991). Where, as here, the
treating physician's opinion is controverted, it may be
rejected only if the ALJ makes findings setting forth
specific and legitimate reasons that are based on the
substantial evidence of record. See, e.g.,
Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)
(“A treating physician's opinion on disability,
even if controverted, can be rejected only with specific and
legitimate reasons supported by substantial evidence in the
record.”); Magallanes, 881 F.2d at 751;
Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987).
In July 2006, five months after he had performed surgery on
plaintiff's right shoulder, Dr. Rubinstein issued an
opinion about plaintiff's post-surgical functional
abilities. (See AR 441-44.) Dr. Rubinstein opined
that plaintiff's condition was “permanent and
stationary” (i.e., that plaintiff had reached maximum
medical improvement). (See AR 441.) Dr. Rubinstein
also opined that plaintiff should be precluded from overhead
work; constant repetitive use of the right arm; and lifting,
pulling, or pushing more than 15 pounds. (See AR
The ALJ declined to credit Dr. Rubinstein's opinion for
two reasons. One of the reasons proffered by the ALJ was that
Dr. Rubinstein's opinion was created for worker's
compensation purposes and “therefore was not
specifically referring to the kinds of limitations to be
considered when assessing disability under the Social
Security laws and regulations.” (See AR 26.)
However, it is well-settled that an ALJ must properly
consider every medical opinion, without regard to its source
or its criteria for disability. See Macri v. Chater,
93 F.3d 540, 543-44 (9th Cir. 1996); Desrosiers v.
Secretary of Health and Human Services, 846 F.2d 573,
576 (9th Cir 1988); Booth v. Barnhart, 181 F.Supp.2d
1099, 1105 (C.D. Cal. 2002) (“[T]he ALJ may not
disregard a physician's opinion simply because it was
initially elicited in a state workers' compensation
proceeding, or because it is couched in the terminology used
in such proceedings.”); 20 C.F.R. §§
416.927(c) and 404.1527(c) (“Regardless of its source,
we will evaluate every medical opinion we receive.”);
see generally McLeod v. Astrue, 640 F.3d 881, 886
(9th Cir. 2011) (ALJ was required to consider VA rating of
disability even though the VA and SSA criteria for
determining disability are not identical). Morever, the Court
fails to see how the types of general and widely-understood
limitations recommended by Dr. Rubinstein - in overhead work;
repetitive use of the arm; and lifting, pulling, or pushing -
could have any special meaning that would not apply to the
Social Security context.
Accordingly, the Court finds that this was not a legally
sufficient reason on which the ALJ could properly rely to
reject Dr. Rubinstein's opinion.
The other reason proffered by the ALJ for rejecting Dr.
Rubinstein's opinion was that, although Dr.
Rubinstein's July 2006 opinion may have been reasonable
for the period shortly after plaintiff's surgery, more
recent evidence showed that plaintiff had a greater residual
functional capacity. (See AR 26.) Specifically, the
ALJ noted the more recent opinion of Dr. Enriquez, an
examining physician who opined in April 2011 that plaintiff
could perform the equivalent of light work. (See AR
26; see also AR 676-80.) The Court is mindful of
authority that, as a general matter, a more recent medical
opinion may have more probative value than an older opinion
about a claimant's abilities. See, e.g.,
Young v. Heckler, 803 F.2d 963, 968 (9th Cir. 1986);
Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985);
see also Hunter v. Sullivan, 993 F.2d 31, 35 (4th
Cir. 1992). However, this authority is applicable only if the
record reflects that the claimant's condition had changed
in the period between the two opinions. See Stone,
761 F.2d at 532 (finding that the most recent medical opinion
was the most probative because the claimant's condition
“was progressively deteriorating”); cf.
Young, 803 F.2d at 968 (declining to afford greater
weight to more recent medical report when “it is far
from clear that [claimant's] condition was progressively
deteriorating”). Here, the record is far from clear
that plaintiff's shoulder condition improved after Dr.
Rubinstein had issued his opinion so as to justify according
greater weight to the more recent opinion of Dr. Enriquez.
Indeed, the record contains almost no evidence about
plaintiff's shoulder condition between the two
Instead, the record appears to reflect only the presence of a
conflict between the opinions of Dr. Rubinstein and Dr.
Enriquez, which was merely determinative of the standard to
be applied to the ALJ's proffered reasons for not
crediting the opinion of Dr. Rubinstein, and was not a
legally sufficient reason in itself. See Lester, 81
F.3d at 830 (in event of conflict in the medical opinion
evidence, an ALJ still must provide legally sufficient
reasons to reject a treating or examining physician's
opinion); see also Widmark v. Barnhart, 454 F.3d
1063, 1066-67 and n.2 (9th Cir. 2006) (existence of a
conflict among the medical opinions by itself cannot
constitute substantial evidence for rejecting a treating
In sum, the Court finds that reversal is warranted based on
the ALJ's failure to properly consider the treating
(A.R. 800-803). The Court remanded the matter for further
administrative proceedings (A.R. 805-07).
August 30, 2016, the ALJ issued another decision (A.R.
696-705). Again, the ALJ rejected Dr. Rubinstein's
opinion that Plaintiff is restricted to lifting no more than
15 pounds (A.R. 700, 702-03). Again, the ALJ stated that Dr.
Rubinstein had rendered the opinion “in connection with
the claimant's Workers' Compensation claim”
(A.R. 702). Again, the ALJ gave “great weight” to
the contrary opinion of Dr. Enriquez (A.R. 702-03). The ALJ
While the undersigned recognize [sic] claimant is limited in
his capacity to lift, carry, push, and pull, physical
examination was remarkable for only 20 percent reduction of
range of motion and fully healed medical malleolar fracture
(Exhibit 6F-17). Despite Dr. Rubinstein's limitation in
15 pounds weight limit, the claimant is disabled only 16% in
Workers' Compensation claim, which has different rules
and guidelines. Therefore, the opinions of Dr. Rubinstein are
given partial weight (702).
the ALJ found Plaintiff could perform light work throughout
the period of alleged disability (A.R. 700). However, based
on an application of the Medical Vocational Guidelines
(“the Grids”), the ALJ found Plaintiff disabled
beginning on January 19, 2014 (the day before Plaintiff's
55th birthday) (A.R. 704-05 (applying Grids Rule 202.02)).
The ALJ found Plaintiff not disabled prior to January 19,
2014 (A.R. 705). If Plaintiff were limited to sedentary work
rather than light work, the Grids would conclusively presume
Plaintiff disabled on January 20, 2009 (his 50th birthday).
See Grids Rule 201.10.