Rodriguez v. Bowen

• Citation: 876 F.2d 759
• Decision Date: 30 May 1989
• Docket Number: No. 87-2719,87-2719
• Parties: , Unempl.Ins.Rep. CCH 14681A Nena W. RODRIGUEZ, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 759

876 F.2d 759

26 Soc.Sec.Rep.Ser. 37, Unempl.Ins.Rep. CCH 14681A

Nena W. RODRIGUEZ, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services,

Defendant-Appellee.

No. 87-2719.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 16, 1988.

Decided May 30, 1989.

Brian I. Clymer, Tretschok, McNamara & Clymer, Tucson, Ariz., for plaintiff-appellant.

David R. Mazzi, Dept. of Health & Human Services, San Francisco, Cal., for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before BOOCHEVER, REINHARDT and THOMPSON, Circuit Judges.

REINHARDT, Circuit Judge:

Nena Rodriguez, the claimant, appeals from summary judgment in favor of the Secretary of Health and Human Services affirming the Secretary's denial of Rodriguez' application for Supplemental Security Income. We have jurisdiction under 42 U.S.C. Secs. 405(g) & 1383(c)(3). We reverse the decision of the district court and award benefits, because the Secretary's determination that Rodriguez is not disabled is not supported by substantial evidence.

FACTS

Rodriguez, a forty-two year-old woman, filed an application for supplemental security income benefits on June 10, 1985, claiming that she had been unable to work since November 1981. She has not been employed since 1972, when she married and quit her previous work as a waitress and bartender. At a hearing before an Administrative Law Judge (ALJ), she testified that she has had difficulty in breathing since November 1981, when she contracted a virus which later developed into bronchiectasis. She also testified that she is very sensitive to dust and fumes, and must wear a mask when she goes outside. To aid her breathing, she has been using a Ventalin inhaler and taking several medications, including Ceclor and Theodur. Three or four times each day, she must go through an elaborate postural drain procedure in order to clear her lungs of mucus. She testified that she experiences shortness of breath simply from walking in her house and that she can stand or sit for only very short periods of time. In addition, she testified that she was unable to bend over to lift and she cannot carry her garbage, groceries or laundry.

Rodriguez was examined by several doctors between March 1982 and August 1985. With only one exception, all of the examining physicians agreed as to Rodriguez' objective physical condition and the impairments from which she suffered. ¹ The ALJ found that "[t]he medical evidence establishes that the claimant has ... bronchitis, bronchiectasis, asthma, allergic rhinitis and recurrent maxillary and frontal sinusitis."

Of the physicians who examined Rodriguez, only Dr. T. Pettinger, her treating

                physician, expressed an opinion on the type and amount of work that she was capable of performing.  He concluded that Rodriguez could perform only sedentary 2 or light 3 work for a maximum of four hours per day.  Dr. Montijo, who examined Rodriguez at the request of the Secretary, did not express any opinion as to Rodriguez' residual functional capacity. 4   The ALJ discounted Dr. Pettinger's opinion, and concluded that Rodriguez has "the residual functional capacity to perform ... sedentary work on a sustained basis, with an additional environmental restriction against exposure to excessive amounts of dust, fumes, etc."    Because the ALJ concluded that Rodriguez could engage in substantial gainful activity, her request for disability benefits was denied
                

DISCUSSION

I

For Rodriguez to qualify for Social Security disability benefits, she must establish that her physical impairments prevent her from engaging in substantial gainful activity. 42 U.S.C. Sec. 423(d)(1)(A) (Supp.1988). The impairments must be proved by medically acceptable clinical or laboratory diagnostic techniques and be expected to last for a continuous period of at least 12 months. 42 U.S.C. Secs. 423(d)(3) and (d)(1)(A) (Supp.1988). Rodriguez has the burden of establishing that she is disabled. However, the Secretary does not dispute that Rodriguez cannot perform her past work as a waitress or bartender. Thus, the burden shifts to the Secretary to show that she can still perform substantial gainful work. Fife v. Heckler, 767 F.2d 1427, 1429 (9th Cir.1985).

While the parties agree that Rodriguez' exertional impairments alone do not make her disabled, Rodriguez contends that these impairments, coupled with her non-exertional limitations, 20 C.F.R. Sec. 416.945(d), do support such a conclusion. She contends that the ALJ erred in discounting Dr. Pettinger's uncontroverted opinion as to her residual functional capability, and that in light of that error there was not substantial evidence to support the finding that Rodriguez could engage in substantial gainful activity. ⁵

The medical opinion of a claimant's treating physician is entitled to "special weight." Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir.1988); Valencia v. Heckler, 751 F.2d 1082, 1088 (9th Cir.1985). The treating physician's opinion is given that deference because "he is employed to cure and has a greater opportunity to know and observe the patient as an individual." Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir.1987) (citations omitted). ⁶ However the treating physician's opinion on the ultimate issue of disability is not necessarily conclusive. ⁷ The ALJ may disregard the treating physician's opinion, but only by setting forth "specific, legitimate reasons for doing so, and this decision must itself be based on substantial evidence." Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir.1986). This burden can be met by providing a detailed summary of the facts and conflicting clinical evidence, along with a reasoned interpretation thereof. Id. Furthermore, the ALJ's reasons for rejecting the doctor's opinion must be "clear and convincing." Montijo, 729 F.2d at 601; Rhodes v. Schweiker, 660 F.2d 722, 723 (9th Cir.1981). ⁸

Thus, the issue in this case is whether the ALJ gave clear and convincing reasons with sufficient detail and factual support to justify his rejection of Dr. Pettinger's opinion. The ALJ asserted that he was disregarding Dr. Pettinger's medical opinion because (1) Dr. Pettinger's records did not provide actual and specific clinical documentation; (2) the degree of impairment found by the doctor was inconsistent with earlier pulmonary function tests; and (3) Rodriguez apparently responded favorably to medical treatment. ⁹ On a thorough and complete review of the record, we conclude that these are not clear and convincing reasons for disregarding Dr. Pettinger's opinion that Rodriguez is disabled.

While objective diagnoses and observations are the most important parts of a physician's reports, "[n]either the [ALJ's] observation of the claimant nor his reliance on the inability of the physicians to support their findings with objective laboratory findings constitute[s] a clear and convincing reason for rejecting their conclusions." Montijo v. Secretary of Health and Human Services, 729 F.2d at 601 (citing Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir.1975)). Merely to state that a medical opinion is not supported by enough objective findings "does not achieve the level of specificity our prior cases have required, even when the objective factors are listed seriatim." Embrey, 849 F.2d at 421. "Disability may be proved by medically-acceptable clinical diagnoses, as well as by objective laboratory findings." Day, 522 F.2d at 1156.

In addition, the ALJ must give sufficient weight to the subjective aspects of a doctor's opinion. Embrey, 849 F.2d at 422. This is especially true when the opinion is that of the treating physician. Young v. Heckler, 803 F.2d 963 (9th Cir.1986), cited by the Secretary, is not to the contrary. In Young, the court upheld the ALJ's discounting of the medical opinion of the claimant's treating physician. 803 F.2d at 968. However, the treating physician's opinion was not only unsupported by clinical findings, but was contradicted by the opinions of all of the other examining physicians. Id. at 964, 968. A similar argument applies to the other principal case cited to us by the Secretary, Lombardo v. Schweiker, 749 F.2d 565, 566-67 (9th Cir.1985).

Here, although the ALJ did attempt to relate the objective findings to Dr. Pettinger's medical opinion, Embrey, 849 F.2d at 422, he appears ultimately to have stated that the opinion was not supported by the objective findings. As we have already discussed, and as our case law clearly establishes, this is not sufficient. Montijo, 729 F.2d at 601. ¹⁰

The ALJ's conclusion that Rodriguez was responding to treatment also does not provide a clear and convincing reason for disregarding Dr. Pettinger's opinion. No physician opined that any improvement would allow Rodriguez to return to work. Equally important, the ALJ does not claim that Rodriguez is malingering, nor would the record support such a claim. Gallant v. Heckler, 753 F.2d 1450, 1455 (9th Cir.1984); Rhodes v. Schweiker, 660 F.2d 722, 723-24 (9th Cir.1981). Thus, the ALJ erred when he failed to provide clear and convincing reasons for disregarding the treating physician's opinion.

II

We still must decide whether to remand the case for further findings or hold that Rodriguez is disabled and entitled to disability benefits. While we have said that "[t]he decision whether to remand the case for additional evidence or simply to award benefits is within the discretion of the court," Stone v. Heckler, 761 F.2d 530, 533 (9th Cir.1985), we generally award benefits when no useful purpose would be served by further administrative proceedings, Kornock v. Harris, 648 F.2d 525, 527 (9th Cir.1985), or when the record has been fully developed and there is not sufficient evidence to support the ALJ's conclusion. Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir.1986). Remand is appropriate "where additional administrative proceedings could remedy defects"; but where...