ORDER
Plaintiff Cynthia Lannon applied for disability benefits and supplemental security income in July 2012, claiming to be disabled since May 25, 2010. (AR 205-15.) The applications were denied. (AR 81-82, 140-54.) A hearing before an Administrative Law Judge (ALJ) was held on April 2, 2014, at which Plaintiff and a vocational expert testified. (AR at 41-80.) The ALJ issued a written decision on May 27, 2014, finding Plaintiff not disabled finder the Social Security Act. (AR 12-24.) This became Defendant’s final decision when the Appeals Council denied' review. (AR 1-6.)
Plaintiff then commenced this action for judicial review (Doc. 1.) After receipt of
STANDARD OF REVIEW
The district court reviews only those issues raised by the party challenging the Commissioner’s decision. See Lewis v. Apfel,
The court, however, “must consider the entire record as a whole and may not affirm simply by isolating a ‘specific quantum of supporting evidence.’” Orn,
DISCUSSION
Whether a claimant is disabled is determined using a five-step evaluation process. To establish disability, the claimant must show (1) she is not currently working, (2) she has a severe impairment, and (3) her impairment meets or equals a listed impairment or (4) her residual functional capacity (RFC) precludes her from performing past work. If the claimant meets her burden, the Commissioner must show at step five that the claimant is able to perform other work. 20 C.F.R. §§ 404.1520, 416.920(a)(4)(i)-(v).
Plaintiff has met her burden at steps one and two because she has not worked since before the alleged date of disability and has the following severe impairments: cervical degenerative disc disease, status post laminectomy and suboccipital cranio-tomy, rheumatoid arthritis, osteoarthritis, obesity, and hypertension. (AR 16.) The ALJ found at step three that the impairments do not meet or equal a listed impairment. (AR 16-17.) The ALJ then determined that Plaintiff has the RFC to perform sedentary work with the following abilities and limitations: lifting and carrying less than 10 pounds frequently and 20 pounds occasionally; unlimited sitting, standing and walking, frequent stooping and crouching, occasional kneeling and climbing ramps and stairs, but no crawling or climbing ladders; frequent reaching except for overhead, and frequent handling, fingering, and feeling. (AR 17-23.) Based on this RFC and the testimony of the vocational expert, the ALJ determined at step four that Plaintiff is not disabled because she can perform her past work as an administrative assistant, accounting clerk, and customer service representative. (AR 23-24.)
Plaintiff challenges the RFC and step four determinations. Plaintiff argues that the ALJ improperly weighed medical opinions, particularly with respect to her arthritis and headaches. (Docs. 15 at 7-17, 22 at 1-8.) Plaintiff further argues that the ALJ erred in rejecting her testimony about her symptoms and limitations. (Id. at 17-20, 8-11.)
Defendant counters that the ALJ properly resolved conflicts in the medical opinions based on substantial evidence (Doe. 19
The Court agrees with Plaintiff that the ALJ еrred in weighing medical opinions and discrediting her testimony. The ALJ’s decision therefore must be reversed and, for reasons stated below, remanded for an award of benefits.
I. The ALJ Improperly Weighed Medical Opinions.
Dr. Richard Kelly has treated Plaintiff since 1990. He completed an RFC questionnaire indicating that Plaintiff suffers from daily neck pain and headaches, pain in her hands due to rheumatoid arthritis, and chronic fatigue. (AR 400.) He opined that due to these impairments, Plaintiff has significant limitations in reaching, handling, and fingering, would need frequent and lengthy breaks during the workday, would miss work more than four times a month, and otherwise is not physically capable of working eight hours a day, five days a wеek on a sustained basis. (AR 400-01.) In a separate migraine headache questionnaire, Dr. Kelly opined that Plaintiff experiences throbbing headaches in the back of her head and neck and the headaches interfere with her ability to work. (AR 403.)
Despite the fact that Dr. Kelly had been treating Plaintiff for more than 20 years, the ALJ gave his opinion no weight. (AR 22.) This constitutes legal error, Plaintiff argues, because the ALJ failed to provide sufficient reasons for rejecting the opinion. The Court agrees.
A. Standard for Weighing Medical Opinions
The Commissioner is responsible for determining whether a claimant meets the statutory definition of disability and is not bound by a physician’s ultimate conclusion that the claimant is “unable to work” or “disabled.” 20 C.F.R. §§ 404.1527, 416.927(d)(1). But the Commissioner generally must defer to a physician’s medical opinion, such as statements concerning the nature or severity of the claimant’s impairments, the claimant’s physical or mental limitations, and what the claimant can still do despite the impairments and limitations. 20 C.F.R. §§ 404.1527, 416.927(a)(2).
The regulations make clear that opinions of treating doctors generally should be given more weight than the opinions of other doctors. Id., §§ 404.1527, 416.927(c)(2). “If the ALJ wishes to disregard the opinion of the treating physician, he or she must make findings setting forth specific, legitimate reasons for doing sо that are based on substantial evidence in the record.” Murray v. Heckler,
B. The ALJ Erred in Rejecting the Treating Physician’s Opinion
In this case, the ALJ impermissi-bly rejected Dr. Kelly’s opinion in conclu-sory fashion. He gave the opinion no weight because it purportedly is “inconsistent with the greater objective medical record.” (AR 22.) This conclusory assertion falls far short of the standard required for rejecting the opinion of a treating physician. See 20 C.F.R. §§ 404.1527, 416.927; Cotton,
The ALJ further concluded that Dr. Kelly’s opinion was “inconsistent with, other treatment records” (AR 22), but he does not explain why this is so. The “other treatment records” span more than 100 pages. (Id., citing Exs. 6F, 9F, 19F, & 24F.) In rejecting Dr. Kelly’s opinion, however, the ALJ failed to cite to a single individual record that is inconsistent with the opinion. (Id.)
The ALJ noted that Dr. Kelly contradicted himself by indicating that Plaintiff can walk eight blocks without rest but can stand and walk less than one hour in a normal workday. (AR 22.) Dr. Kelly clarified, however, that Plaintiff can stand and walk for only fifteen minutes at a time. (AR 400.) Moreover, the apparent contradiction does not relate to the most relevant impairments and limitations, namely, Plaintiff’s headaches and arthritis, and her limited ability to handle, finger, and feel things-and maintain a regular work schedule on a sustained basis. In short, the ALJ failed to explain how any contradiction regarding Plaintiffs ability to walk renders the rest of Dr. Kelly’s opinion worthy of no deference.
■ Under Social Security Ruling (SSR) 96-2p, which provides guidance for the weighing of .medical opinions, a treating physician’s. opinion is still entitled to some deference and ..must be given appropriate weight even where it is not supported by clinical findings and' is inconsistent with other evidence. SSR 96-2p,
[ALJ’s] must remember that a finding that a treating source medical opinion is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other substantial evidence in the case record means only that the opinion is not entitled to “controlling weight,” not that the opinion should be rejected. Treating source medical opinions are still entitled to deference and must be weighеd using all of the factors provided in 20 C.F.R. m-1527 and J/.16.927.
Id. at *4 (emphasis added). “These factors include the ‘length of the treatment relationship and the frequency of examination’ by the treating physician, [and] the ‘nature and extent of the treatment relationship’ between the patient and the treating physician[.]” Ghanim v. Colvin,
As noted above, Dr.' Kelly has been treating Plaintiff for more than 20 years. (AR 400.) This longtime treating relationship “provides a ‘unique perspective’ on [Plaintiffs] condition,” and the nature and extent of the relationship “adds significant weight to [Dr. Kelly’s] opinions.” Orn v. Astrue,
With respect to the migraine headache questionnaire (AR 403), the ALJ gave it “little or no weight” because it purportedly shows that Plaintiffs headaches “are under control with medication and are not disabling” (AR 22). Dr. Kelly indicated that Plaintiff took Tramadol and her response to the medication was good, but he immediately thereafter opined that the mi
For reasons discussed above, the also ALJ erred in rejecting Dr. Kelly’s opinion about the headaches based on the “greater objective record” without citing to, or discussing, specific medical evidence. See Cotton,
The ALJ noted that Dr. Kelly is a primary care physician and not a rheumatologist or other specialist. (AR 22.) Although more weight generally is to be given to the opinion of a specialist, see §§ 404.1527, 404.927(c)(5), this does not mean that the primary care physician’s opinion should be given no weight. See Perry v. Astrue, No. 2:11-cv-3121-KJN,
The Court finds that the ALJ offered nothing more than unsupported conclusions in rejecting Dr. Kelly’s opinion, and only referred generally to its purported contradiction with other evidence in the record rather than identifying and interpreting the alleged contradictory evidence. “This is not sufficient to meet the standard required by the Ninth Circuit.” Smith v. Colvin, No. CV-13-00507-PHX-DGC,
C. The AU Erred in Adopting the Opinion of the .Exаmining Physician
Plaintiff was examined once by Dr. Keith Cunningham, a physician with the Arizona Disability Determination Services. Dr. Cunningham completed an assessment form opining that Plaintiff can lift and carry less than 10 pounds frequently and 20. pounds occasionally, can frequently stoop and crouch and occasionally kneel and climb, .can sit, stand, and walk without limitation, and can frequently handle, finger, and feel things. (AR 434-40.) The ALJ gave this opinion “significant weight” and used it as the basis for his RFC determination. (AR 17-18, 23.)
Plaintiff argues, correctly, that the ALJ erred in adopting the opinion of Dr. Cunningham over that of the treating physician, Dr. Kelly. (Doc. 15 at 13-14.) An ALJ may disregard a treating physician’s opinion in favor of one from an examining doctor if he provides valid reasons for doing so. This can be done by “setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating [the ALJ’s] interpretations thereof, and making findings.” Cotton,
D. The ALJ Erred in Giving Weight to the Opinions of Non-Examiners
“The weight afforded a non-examining physician’s testimony depends ‘on the degree to which they provide supporting explanations for their opinions.’ ” Ryan v. Comm’r, Soc. Sec. Admin.,
Moreover, the non-examining physicians’ opinions are conclusory and therefore not worthy of credence. The doctors gave “lesser or no weight” to Dr. Kelly’s opinion because “the totality of the circumstances does not support the opinion” and it purportedly “contains inconsistencies” and “contrasts sharply with the other evidence in the record[.]” (AR 100, 103, 132, 136.) But the evidence and circumstancеs that purportedly render Dr. Kelly’s opinion meritless are not discussed and interpreted by the non-examining physicians. The ALJ’s conclusory reliance on opinions that are themselves conclusory constitutes clear legal error.
E. Defendant’s Arguments
Defendant cites to specific record evidence in arguing that Dr. Kelly’s opinion is not supported by the record as a whole. (Doc. 19 at 8-10.) But the ALJ did not rely on this specific evidence in support of his conclusion or otherwise state that the evidence rendered Dr. Kelly’s opinion worthy of no weight.
The Court “is powerless to affirm the [ALJ’s decision] by substituting what it considers to be a more аdequate or proper basis.” SEC v. Chenery Corp.,
Where an ALJ explains a finding with less than ideal clarity, Defendant contends, “reviewing courts must uphold it if the ALJ’s path ‘may reasonably be discerned.’ ” (Doc. 19 at 11) (quoting Molina v. Astrue,
Defendant further contends that the medical records Plaintiff relies on do not render the ALJ’s conclusions “irrational.” (Doc. 19 at 10.) But this is not the standard. Plaintiff need not show that the ALJ’s conclusions are irrational. Rather, the ALJ must affirmatively set forth specific and legitimate reasons for rejecting or accepting medical opinions, and those reasons must be supported by substantial evidence. See Cotton,
F. Medical Opinion Summary
In interpreting the rules and regulations for the weighing of medicаl opinions, this Circuit made clear more than 30 years ago that an ALJ may disregard the opinion of a treating physician only by providing specific and legitimate reasons supported by substantial evidence. Murray,
Although the ALJ recounted much of the medical evidence (AR 19-21), he failed to explain why the evidence supported his сonclusion that the treating physician’s opinion should be given no weight. Similarly, the ALJ did not explain what specific evidence supported his decision to give significant weight to the examining physician’s opinion and partial weight to those of the non-examining doctors. In short, the ALJ erred in failing to weigh all relevant factors and rejecting the treating physician’s opinion without adequate explanation supported by substantial evidence. See Burrell,
II. The ALJ Erred in Discrediting Plaintiffs Symptom Testimony
The ALJ must engage in a two-step analysis to determine whether a claimant’s testimony regarding subjective pain or other symptoms is credible. The ALJ first determines whether the claimant presented objective medical evidence of an impairment' that reasonably could be expected to produce some degree of the symptoms alleged. If the claimant makes this showing and there is no evidence of malingering, “the ALJ can reject the clаimant’s testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.” Smolen v. Chater,
Plaintiff testified that because of her arthritis," she has swelling in her hands, little feeling in her fingertips, se~
There is no dispute that Plaintiff suffers from rheumatoid arthritis, osteoarthritis, cervical degenerative disc disease, obesity, and hypertension. (AR 16.) Plaintiff underwent cervical laminectomy and suboccipital craniotomy surgery in June 2011 to help relieve compression on her spinal cord. (AR 321.) The ALJ found that Plaintiffs impairments reasonably could be expected to cause her alleged symptoms, but nonetheless concluded that- her symptom testimony was not entirely credible. (AR 19.)
Because the ALJ made no finding of malingering, he was required to give clear and convincing reasons for his adverse credibility finding. “This is not an easy requirement to meet: ‘The clear and convincing standard is the most demanding required in Social Security cases.’ ” Garrison v. Colvin,
The ALJ found Plaintiff to be more active than she claimed, asserting several reasons for this finding. (AR 19.) None has merit.
The ALJ first noted that a treatment record (AR 569), indicates Plaintiff was looking for work in September 2010 (AR 19, 569). But this job search occurred more than three years before the hearing, and even then Plaintiff complained that it was painful to hold or open things like a bottle of water, that she often drops things, that her hand pain had worsened over the past six months, and sometimes her “hands feel like cement,” (AR 569.) The ALJ ignored these complaints and instead selectively picked the statement that Plaintiff was looking for work.
ALJs, however, “must review the whole record; they cannot cherry-pick evidence to support them findings.” Bostwick v. Colvin, No. 13-cv-1936-LAB,
Plaintiff testified that because her hands “like to be straight [and] don’t like to curl,” she has trouble gripping the steering wheel and “can’t drive for any lоng period.” (AR 56.) She explained that although she can go up the street to the Fry’s grocery store to “pick up a couple things, that is it” because she “can’t go and get a week’s worth of groceries.” (Id.) With respect to cooking, Plaintiff stated that she can scramble eggs and also makes a lot of sandwiches, in part because they are not too hard to clean up when she drops them. (AR 56-57.) She has trouble lifting even a half-gallon of milk and uses scissors to open things. (AR 55.) Plaintiff also made clear that her “son does some of the cooking” and will “bring over meals occasionally.” (AR 57.)
The ALJ ignored these limitations in finding that Plаintiffs ability to “shop, cook, and drive” renders her symptom testimony not credible. (AR 19.) Moreover, this Circuit has “repeatedly asserted that the mere fact that a plaintiff has carried on'certain daily activities, such as grocery shopping [and] driving a car, ... does not in any way detract from her credibility as to her overall disability. One does not need to be ‘utterly incapacitated’ in order to be disabled.” Vertigan v. Halter,
The ALJ also found Plaintiffs symptom testimony not. credible because she reported being her mother’s caregiver and sometimes helping her mother get up and move around. (AR 19.) Plaintiff denied being her mother’s caregiver, stаting that she did not know why this is reflected in the treatment note. (AR 64-65, 68.) But even if this were an accurate reflection, the treatment note otherwise supports Plaintiffs hearing testimony about her pain and other symptoms. The treatment note, dated March 22, 2012, shows that Plaintiff presented with complaints of hand swelling and pain that began two years earlier. (AR 523.) She reported limitations including trouble driving and gripping the steering wheel, problems opening things without the use of scissors, and difficulty performing tasks like typing- or using a computer. (Id.) She also stated that her pain lével was at three in the morning and coüld increase to seven depending on her аctivity level. (AR 523-24.)
These reports of pain and limitations aré entirely consistent with Plaintiffs hearing testimony. (AR 55-64.) The ALJ selectively focused on one statement—that Plaintiff was her mother’s caregiver—and ignoréd the rest. Moreover, the treatment note itself makes clear that, when Plaintiff did help her mother get up, “she has mofe pain.” (AR 523; see AR 543) (“more sore” when she helps her mother.)"
Finally, the ALJ found the symptom testimony not credible because Plaintiff “reported an exercise routine consisting .of swimming 3-4 times per week.” (AR 19.) The ALJ specifically inquired about this activity at the hearing, and 'Plaintiff made
Q. Now, the notes, there’s notes thаt said you swim three to four times a week?
A. Yeah. I like to swim in the summer, it really helps. It’s not a heated pool but I try and get as much out of the season as I can.
Q. Okay. Now, when you say swim, some people say swim and it means just getting in the water, floating around. Other people swim [and it] means you’re actually taking strokes and swimming. What, how are you defining swimming?
A. Walking.
Q. Okay.
A. I walk in the pool.
Q. Okay. So you’re not swimming laps, overhead strokes, that type of thing?
A. No. I go down and I walk back and forth in the pool.
Despite this colloquy, the ALJ found Plaintiffs symptom testimony not credible because she could “swim.” (AR 19.) This reason clearly is not convincing, nor is it supported by the record.
The ALJ summarized numerous treatment records and exam results (AR 19-20), but gave no reasons—let alone clear and convincing ones—as to why they support, his adverse credibility finding. Moreover, “[o]nce a claimant produces objective medical evidence of an underlying impairment, an ALJ may not reject a claimant’s subjective complaints based solely on lack of objective medical evidence to fully corroborate the alleged severity of pain.” Moisa v. Barnhart,
The ALJ also erred in failing to cite to the specific testimony he found not credible. (AR 19.) “‘General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant’s complaints.’ ” Reddick,
Defendant acknowledges that Plaintiffs activities do not demonstrate an ability to work, but argues that the purported inconsistencies between her testimony and claimed limitations support the ALJ’s adverse credibility finding. (Doc. 19 at 18.) As explained above, however, there is no material inconsistency when the testimony is viewed as a whole and in the proper context. In addition to her testimony that she has difficulty shopping, cooking, and driving due pain and other symptoms, Plaintiff also explained that she has trouble doing housework and cannot vacuum or mop, and uses “little tricks” to dress herself but does not wear anything with buttons or zippers due to the swelling and loss of feeling in her hands and fingers. (AR 55-56.) On the whole, Plaintiffs testimony about her daily activities is not inconsistent with her alleged disabling impairments.
Defendant’s reliance on Molina v. Astrue,
In summary, the record shows that Plaintiffs daily activities are quite limited and carried out with much difficulty, and the medical evidence is not clearly inconsistent with Plaintiffs complaints of pain. Considering the record as a whole and in the proper context, the Court concludes that the ALJ failed to provide clear and convincing reasons for finding Plaintiffs symptom testimony not credible. See Benecke v. Barnhart,
REMAND
Having decided to reverse Defendant’s decision, the Court has discretion to remand the case for further development of the record or for an award benefits. See Reddick,
The Court has found that the ALJ failed to provide legally sufficient reasons for discrediting Plaintiffs testimony concerning her symptoms and limitations. The Court has further found that the ALJ erred in rejecting the opinion of Dr. Kelly, one of Plaintiffs treating physicians. The uncontroverted testimony of the vocational expert makes clear that if Plaintiff had the limitations opined to by Dr. Kelly (AR 400-01), which are consistent with Plaintiffs own testimony, the ALJ would be required to find Plaintiff incapable of past or other full time work and therefore disabled (AR 71-79). Thus, crediting Dr. Kelly’s opinion as true, as the Court must under Ninth Circuit law, “it is clear from the record that the ALJ would be required to find [Plaintiff] disabled[.]” Benecke,
Defendant argues that such a remand is unwarranted because “conflicts in the evidence must be resolved based on careful consideration of the entire record[.]” (Doc. 19 at 21.) But Defendant had аmple opportunity during the administrative proceedings below to carefully review the record and resolve conflicts. This Circuit’s “precedent and the objectives of the credit-as-true rule foreclose the argument that a remand for the purpose of allowing the ALJ to have a mulligan qualifies as a remand for a ‘useful purposed]’” Garrison,
Moreover, it already has been more than four years since Plaintiff applied for benefits. (AR 205-15.) Remanding a disability claim for further proceedings can delay much needed income for claimants who are
IT IS ORDERED that the final decision of the Commissioner of'Social Security is REVERSED and the case REMANDED for an award of benefits. The Clerk shall enter judgment accordingly and terminate this, action;
Notes
. See, e.g., Magallanes v. Bowen,