United States District Court, E.D. California
FINAL JUDGMENT AND ORDER REGARDING PLAINTIFF'S
SOCIAL SECURITY COMPLAINT
matter is before the Court on Penny Esther Emberson's
(“Plaintiff” or “claimant”) complaint
for judicial review of an unfavorable decision of the
Commissioner of the Social Security Administration regarding
her applications for supplemental security income. The
parties have consented to entry of final judgment by the
United States Magistrate Judge under the provisions of 28
U.S.C. § 636(c) with any appeal to the Court of Appeals
for the Ninth Circuit. (ECF Nos. 7, 8.)
November 2, 2017, a hearing was held, at which the Court
heard from the parties. Having reviewed the record,
administrative transcript, the briefs of the parties, and the
applicable law, the Court finds as follows:
reasons announced by the Court on the record at the
conclusion of the parties' oral argument on November 2,
2017, the Court finds that the decision of the Commissioner
of Social Security should be reversed and the case should be
remanded for further proceedings.
Administrative Law Judge (“ALJ”) erred by failing
to provide specific and legitimate reasons for rejecting the
opinion of Plaintiff's treating physician. “[T]his
circuit distinguish among the opinions of three types of
physicians: (1) those who treat the claimant (treating
physicians); (2) those who examine but do not treat the
claimant (examining physicians); and (3) those who neither
examine nor treat the claimant (nonexamining
physicians).” Lester v. Chater, 81 F.3d 821,
830 (9th Cir. 1995), as amended (Apr. 9, 1996).
Generally, the opinion of treating physicians should be
afforded greater weight than that of both examining
physicians and nonexamining physicians. Lester, 81
F.3d at 830. In turn, the opinion of examining physicians
should be afforded greater weight than that of nonexamining
physicians. Lester, 81 F.3d at 830.
“must provide ‘clear and convincing' reasons
for rejecting the uncontradicted opinion of an examining
physician.” Lester, 81 F.3d at 830 (citing
Pitzer v. Sullivan, 908 F.2d 502, 506 (9th
Cir.1990). “If a treating or examining doctor's
opinion is contradicted by another doctor's opinion, an
ALJ may only reject it by providing specific and legitimate
reasons that are supported by substantial evidence.”
Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.
2005). “The ALJ can meet this burden by setting out a
detailed and thorough summary of the facts and conflicting
clinical evidence, stating his interpretation thereof, and
making findings.” Magallanes v. Bowen, 881
F.2d 747, 751 (9th Cir. 1989) (citing Cotton v.
Bowen, 799 F.2d 1403, 1408 (9th Cir.1986)).
Plaintiff's treating physician, Pushpalatha Arakere, MD,
submitted a check-the-box physical medical source statement.
She stated that she treated Plaintiff from June 2012 to July
2013, and that Plaintiff appeared chronically ill and visibly
fatigued. AR 449. Id. She opined that Plaintiff
could lift/carry 10 pounds frequently and 10 pounds
occasionally, stand/walk 2-4 hours, walk less than 1 block,
and sit for less than 2-3 hours in an 8 hour day.
Id. Dr. Arakere cited Plaintiff's visible
fatigue in support of the limitations. AR 450. The ALJ gave
Dr. Arakere's opinion less than controlling weight. AR
14. The ALJ reasoned, “I give partial weight to this
opinion because it is not supported with the relevant
evidence. Dr. Arakere's opinion is more restrictive than
the claimant hearing testimony where she testified she could
lift 15 pounds and could alternate between sitting and
standing in 1-hour increments.” Id.
Court finds that the ALJ failed to provide specific and
legitimate reasons supported by substantial evidence for
rejecting the opinion of Plaintiff's treating physician.
First, the ALJ's finding that Dr. Arakere's opinion
is more restrictive than Plaintiff's testimony is not
supported by substantial evidence in the record. A conflict
between a claimant's testimony and the opinion of a
physician may serve as substantial evidence to discredit a
physician's opinion. See Morgan v. Comm'r of Soc.
Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999). The ALJ,
however, manufactured a conflict between Plaintiff's
testimony and the opinion of Dr. Arakere. At the
administrative hearing, the ALJ asked Plaintiff, “if
you can't lift 20 pounds can you lift 15 or can you lift
10.” AR 55. Plaintiff responded that she “could
lift 10, 15.” Id. Later, when asked whether
she could lift 10 to 15 pounds throughout an eight-hour
workday, Plaintiff responded that she “wouldn't be
able to take the pain.” AR 59. Plaintiff gave an
estimate of her capability, and later qualified it with
testimony does not conflict with, and is not more restrictive
than, Dr. Arakere's opinion that Plaintiff could
lift/carry 10 pounds frequently and 10 pounds occasionally in
an eight-hour workday. Similarly, Plaintiff testified that
she can sit for an hour before needing to get up to stretch
and walk around. AR 53-54. Plaintiff also testified that
after standing for an hour she would need to sit down or
change positions. AR 54. Plaintiff did not testify that she
could “alternate between sitting and standing in 1-hour
increments.” AR 14. Dr. Arakere's opinion also did
not state that Plaintiff would be unable to periodically
alternate between sitting and standing. AR 449-50. Thus, the
Court does not find that substantial evidence supports the
ALJ's conclusion that Dr. Arakere's opinion was more
restrictive than Plaintiff's testimony regarding her
the ALJ's finding that Dr. Arakere's opinion was not
supported by the relevant evidence lacks sufficient
specificity. See Embrey v. Bowen, 849 F.2d 418,
421-422 (9th Cir. 1988); see e.g. Belanger v.
Berryhill, 685 F. App'x 596, 598 (9th Cir. 2017)
(finding that an ALJ's reason for giving a
physician's opinion less than controlling weight was
insufficient where the ALJ stated that the opinion was
inconsistent with the records as a whole). The ALJ fails to
explain which aspects of Dr. Arakere's opinion were
inconsistent with the record and fails to identify such
inconsistencies in the record.
argues that Tommasetti v. Astrue, 533 F.3d 1035 (9th
Cir. 2008) is controlling in this matter. In
Tommasetti the court found that the ALJ properly
rejected a treating physician's opinion as a rehashing of
claimant's own statements, which the ALJ discredited.
Tommasetti, 533 F.3d at 1041. Defendant argues that
the ALJ rejected Dr. Arakere's opinion as it relied on
Plaintiff's discredited subjective complaints of fatigue.
However, the ALJ does not give such reasoning, and the Court
cannot now inject such reasoning into the record. See
Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219,
1225 (9th Cir. 2009) (“Long-standing principles of
administrative law require us to review the ALJ's
decision based on the reasoning and factual findings offered
by the ALJ-not post hoc rationalizations that
attempt to intuit what the adjudicator may have been
thinking.”). Moreover, Dr. Arakere's opinion is not
based on Plaintiff's subjective complaint, but on her
visual analysis of Plaintiff's condition. AR 499-450.
Defendant also argues that under Magallanes v.
Bowen, 881 F.2d 747, 751 (9th Cir. 1989), the Court
should affirm the ALJ's determination. In
Magallanes, the court found, “To the extent
that [non-treating physicians'] conflicting opinion
rested on independent, objective findings, those opinions
could constitute substantial evidence” in rejecting a
treating physician's opinion. 881 F.2d at 753. In this
case, however, no non-treating physician made independent,
objective findings regarding the effects of fatigue on
Plaintiff's ability to perform sustained work activities
on a regular and continuing basis. Moreover, the ALJ did not
cite this as a reason for his determination, and the Court
cannot now make guesses as to which medical evidence the ALJ
found contradicted Dr. Arakere's opinion. See
Bray, 554 F.3d at 1225.
the Court cannot confidently conclude that no reasonable ALJ,
when fully crediting the testimony, would have reached a
different disability determination, the ALJ's error was
not harmless. See Stout v. Comm'r, Soc. Sec.
Admin., 454 F.3d 1050, 1056 (9th Cir. 2006) (“[A]
reviewing court cannot consider the error harmless unless it
can confidently conclude that no reasonable ALJ, when fully
crediting the testimony, could have reached a different
disability determination.”). Furthermore, there are
outstanding issues concerning whether, as the Vocational
Expert testified, Plaintiff would be able to do work on a
regular and continuing basis when considering the limitation
identified by Dr. Arakere.
remand, the ALJ shall re-consider its assessment of the
treating physician's opinion and articulate specific and
legitimate findings supported by substantial evidence in the
record in evaluating the weight that should be afforded the
the Court GRANTS Plaintiffs appeal from the administrative
decision of the Commissioner of Social Security and the case
is remanded to the Social Security Administration for further
proceeding. The Clerk of the Court is DIRECTED to enter
judgment in favor of ...