United States District Court, E.D. California
ORDER ON SOCIAL SECURITY APPEAL
has requested judicial review of the Social Security
Administration's (“SSA”) denial of his
application for a period of disability and disability
insurance benefits. On October 22, 2019, I heard argument
from the parties. Having considered the parties'
arguments, the record, and applicable law, I will remand this
matter for further consideration by the Administrative Law
appeal, I ask whether substantial evidence supports the
Commissioner's factual findings and whether the
Commissioner applied the proper legal standards. 42 U.S.C.
§ 405(g). Claimant argues that remand is required to
correct alleged flaws in the ALJ's evaluation of the
opinions of two doctors: Bruce E. Fishman, an orthopedic
surgeon who examined claimant and who had served as an Agreed
Medical Examiner in the context of a workers'
compensation claim, and Marshall S. Lewis, claimant's
treating physician. The ALJ accorded no weight to the
opinions of Dr. Fishman and “little weight” to
Dr. Lewis' opinion.
evaluating whether an ALJ's decision to discount the
opinion of a doctor is supported by substantial evidence, the
applicable standard depends on the extent of contact that the
doctor had with the claimant and whether the doctor's
opinion is contradicted by that of another doctor. See
Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).
Here, as discussed at oral argument, the same standard
applies for both doctors: the ALJ may reject their opinions only
for “specific and legitimate reasons” supported
by substantial evidence. See id.
I can determine, the ALJ rejected the opinions of Dr. Fishman
because she found them to be (1) “self-contradictory
and inconsistent”; (2) “not supported by clinical
evidence of symptomatology supporting greater limitations in
the claimant's ability to lift, carry, push, or
pull”; (3) “predicated on a set of considerations
found in the Worker's Compensation system”; (4)
generally undergirded by “insufficient objective
support” and dependent on claimant's
“self-reported complaints, rather than on imaging,
clinical reports, or other medical evidence”; and (5)
devoid of a “function-by-function determination, with
regard to the claimant's residual capacity.” AR 20.
the ALJ provided a host of reasons for rejecting Dr.
Fishman's opinions, several are problematic. The
ALJ's first two stated reasons-internal inconsistency and
lack of evidence for limits on lifting, carrying, pushing and
pulling-appear to stem from a mistaken belief that Dr.
Fishman completed the two “Functional Capacities
Assessment” forms included with his April 5, 2013
opinion. AR 706, 708. In fact, claimant-rather than the
doctor-filled out these forms, and any internal
contradictions or lack of supporting clinical evidence can
hardly be held against Dr. Fishman.
ALJ's third reason for rejecting Dr. Fishman's
opinion is that it originated from the workers'
compensation context. This reason is troubling, and
ultimately unsound. The criteria determining workers'
compensation eligibility differ from those that drive an SSA
disability determination, see Desrosiers v. Secretary of
Health and Human Services, 846 F.2d 573, 576 (9th Cir.
1988), and a disability determination in a workers'
compensation proceeding does not bind SSA, but this does not
necessarily mean that “observations and findings made
in [reports from the workers' compensation process] . . .
are . . . of limited probative value” in disability
proceedings. AR 21 n.1. Instead, records generated by doctors
in workers' compensation proceedings should be treated
like other medical records in evidence before the ALJ. To the
extent that the ALJ discounted Dr. Fishman's opinions
simply because they came from the workers' compensation
context, the ALJ erred. See Bowser v. Comm'r of Soc.
Sec., 121 Fed.Appx. 231, 241-44 (9th Cir. 2005)
(“[T]he ALJ may not ignore a doctor's medical
opinion merely because it was issued in a workers'
compensation context[; i]nstead, the objective medical
findings contained in such opinions are to be evaluated as
any other medical opinion.”); Carter v.
Chater, 99 F.3d 1145, n.1 (9th Cir. 1996) (unpublished)
(“[T]he ALJ erred by considering the fact that most of
Carter's medical records were generated for her
Workers' Compensation claim.”).
ALJ's remaining reasons for rejecting Dr. Fishman's
opinions are not enough to convince me that the
above-discussed errors were harmless, since I have no way to
know whether the ALJ's disability determination would
have been different had she recognized that claimant
completed the assessment forms that she found to be
internally inconsistent, or had she appreciated the need to
evaluate a medical opinion from the workers' compensation
process under the routine criteria that guide the weighing of
medical opinions in this circuit. Remand is therefore
it is helpful on remand, I will briefly address the ALJ's
consideration of Dr. Lewis' opinion. I find that the ALJ
provided specific and legitimate reasons supported by
substantial evidence in the record for discounting this
opinion. The ALJ discusses Dr. Lewis' statements over the
course of several pages-AR 21-22, 24-25-and summarizes her
reasons for according his opinion little weight in a 13-line
paragraph. She provides several reasons for discounting his
opinion, including (1) a perceived mismatch between the
severity of the limitations that Dr. Lewis attributes to
claimant and the minimal follow-up treatment recommended, (2)
a lack of clinical support for purported upper extremity
limitations, (3) a lack of mental health treatment that might
have supported a mental health impairment, and (4) the delay
between Dr. Lewis' assessment and his last treatment of
claimant. These stated reasons find support in the record.
reasons stated in this opinion, I remand this case so that
SSA can consider appropriately the opinion of Dr. Fishman.
The clerk of court is directed (1) to enter judgment in favor
of claimant Curt Allen Lundgren II and against defendant
Commissioner of Social Security, and (2) to close this case.
 In the Ninth Circuit, doctors are
classified either as treating doctors, examining but not
treating doctors, or non-examining doctors, with treating
doctors' opinions generally accorded the most weight.
Although the ALJ described Dr. Fishman as a treating
physician, AR 19, claimant concedes that he is better
classified as an examining physician. Dr. Lewis was a
treating doctor. Both doctors' opinions were
contradicted-for example by the opinion of Dr. Rajeswari
Kumar, see AR 22-23-and the “specific and
legitimate” standard applies to both. See
Lester, 81 F.3d at 830.
 The ALJ's mistake is
understandable. Only claimant's signature shows that he
completed the form, and his handwriting is hard to make out,
except for the ...