Lingenfelter v. Astrue

BEEZER, Circuit Judge,

dissenting:

The opinion of the Court fails to properly analyze the ALJ’s assessment of Lin-genfelter’s. credibility. When evaluating the credibility of a claimant’s testimony, the ALJ has discretion to resolve conflicts between the opinions of examining and treating physicians. The ALJ may be justified in discounting the value of Dr. Cail-louette’s statements as to Lingenfelter’s ability to work. Additionally, when the *1042treating physicians’ statements are ambiguous, we must permit the ALJ to interpret the statements, rather than adopting, de novo, our own interpretation.

I would reverse the judgment of the district court on the narrow ground that the ALJ and the Appeals Council failed to set forth specific, legitimate reasons for disregarding the treating physicians’ medical opinions. Rather than taking Lingen-felter’s testimony as true and remanding only for an award of benefits, we should remand to the agency to enter specific findings regarding the treating physicians’ medical opinions and to develop a revised credibility determination based on those findings.

I

When evaluating the medical opinions of treating and examining physicians, the ALJ has discretion to weigh the value of each of the various reports, to resolve conflicts in the reports, and to determine which reports to credit and which to reject. Although the opinions of treating physicians are given deference, the ALJ may reject these opinions if, among other reasons, (1) they are contradicted by the opinion of a non-treating physician, and (2) the ALJ makes “findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record.” Orn v. Astrue, 495 F.3d 625, 632 (9th Cir.2007); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.2002). When an examining physician provides independent clinical findings that differ from the findings of the treating physician, such findings are themselves “substantial evidence.” Orn, 495 F.3d 625, 632; Thomas, 278 F.3d at 957; Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir.1995). Under these circumstances, “it is then solely the province of the ALJ to resolve the conflict” and to decide which medical opinions to credit. Andrews, 53 F.3d at 1041; see also Morgan v. Comm. of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir.1999) (“Where medical reports are inconclusive, ‘questions of credibility and resolution of conflicts in the testimony are functions solely of the [Commissioner].’ ” (citing Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982))). Additional factors relevant to evaluating any medical opinion include the amount of relevant evidence that supports the opinion, the quality of the explanation provided in the opinion, and the consistency of the medical opinion with the record as a whole. Orn, 495 F.3d 625, 631.

We defer to an ALJ’s rational interpretation of conflicting evidence even in the context of credibility determinations, where the more rigorous “clear and convincing reasons” standard applies to the broader reasons that the ALJ is required to provide for disbelieving a claimant’s subjective testimony.1 See Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir.2005) (stating, in a case where the ALJ interpreted evidence in the context of making a credibility determination, “[w]e must uphold the ALJ’s decision where the evidence is susceptible to more than one rational interpretation”); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir.1995) (“We *1043will not reverse credibility determinations of an ALJ based on contradictory or ambiguous evidence.”).

In this case the medical evidence is contradictory, but weighs in favor of Lingen-felter’s ability to perform sedentary work. On the one hand, a series of examining physicians found at various times throughout the insured period, based on thorough and independent clinical findings, that Lin-genfelter was capable of performing sedentary work.2 On the other hand, the only medical evidence stating that Lingenfelter is fully disabled from all types of work comes from Lingenfelter’s two treating physicians, Dr. Caillouette and Dr. Tis-chler. These physicians’ opinions are not decisive, and Dr. Caillouette’s opinion is ambiguous and inadequately supported by clinical findings, as discussed below. Given the overall weight of the evidence, the ALJ would be within his discretion to credit the medical opinions of the four examining physicians while discrediting or rejecting the conclusions of Drs. Cail-louette and Tischler.

II

Lingenfelter’s first treating physician, Dr. Caillouette, stated in February 1998 that Lingenfelter was “fully disabled from work.” The opinion of the Court interprets this to mean “fully disabled from all types of work,” rather than “fully disabled from his work as a heavy laborer.” The exact meaning of Dr. Caillouette’s statement is ambiguous, however, and the statement may not be inconsistent with the examining physicians’ opinions stating that Lingenfelter was capable of sedentary work. As such, it is within the discretion of the ALJ to interpret the statement and resolve the ambiguity.

On September 4, 1996, Dr. Caillouette noted that “Lingenfelter essentially works as a heavy laborer,” and concluded that he had “a complete loss of pre-injury work capacity.” Lingenfelter’s pre-injury work as a heavy laborer included carrying up to 100 pounds, and carrying 50 to 75 pounds on a relatively frequent basis. Dr. Cail-louette stated that same day that Lingen-felter was “temporarily disabled from heavy work as a laborer, and I do not anticipate his disability status changing until he has undergone further surgery.” On November 15, 1996, Dr. Caillouette wrote that Lingenfelter “will either need an osteotomy of the leg or total knee ar-thoplasty in the near future in order to restore him to his ability to work.” Both these procedures require surgery. Given that this statement comes only two months after the report stating that Lingenfelter will be disabled from heavy work as a laborer until he has surgery, it would be reasonable to conclude that Dr. Cail-louette’s reference to Lingenfelter’s “ability to work” here means his ability to work as a heavy laborer.

On January 14, 1998, Dr. Caillouette stated that Lingenfelter was “still temporarily disabled from work.” The word *1044“still” connotes a continuation of a certain level of disability, rather than an increase in a patient’s level of disability. There is nothing in the record indicating any determination by Dr. Caillouette between November 1996 and January 1998 that Lin-genfelter was disabled from all work, and it would be unusual for a physician to make such a significant change in a patient’s disability assessment without any written record of the change, and without any clinical findings to support the change. It would be reasonable to infer that “still temporarily disabled from work” refers back to Dr. Caillouette’s 1996 statements of disability, the only other references in the record of Dr. Caillouette’s assessment of Lingenfelter’s ability to work. This inference is supported by the fact that Dr. Caillouette previously used the general term “ability to work” to likely mean “ability to work as a heavy laborer.” Given this context, the February 1998 statement “fully disabled from work” (coming less than a month after the January 14 statement) is, at best, ambiguous. It could reasonably be read as meaning “fully disabled from work as a heavy laborer” or “fully disabled from all work.”3

The ambiguity in Dr. Caillouette’s February 1998 statement requires us to remand the case to the agency for an appropriate interpretation of the statement. If the interpretation of Dr. Caillouette’s statement would affect the ALJ’s appraisal of Lingenfelter’s credibility, we should allow the ALJ to further develop the record. See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir.2001); Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir.1996). If the ALJ makes the same credibility finding regardless of the interpretation of Dr. Cail-louette’s ambiguous statement, then additional development of the record would be unnecessary. In either case, we must give deference to the ALJ’s interpretation of the ambiguous evidence, even in the context of credibility determinations, see Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir.2005) (“[W]e must uphold the ALJ’s decision where the evidence is susceptible to more than one rational interpretation.”), and we should not seek to fill the fact-finding role of the ALJ by developing, de novo, our own interpretation of Dr. Caillouette’s ambiguous statement, see INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam) (“A court of appeals ‘is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry.’ ”) (citation omitted).

Ill

Even if the ALJ determines that Dr. Caillouette did find Lingenfelter completely disabled from all work in February 1998, the ALJ is not obligated to consider the doctor’s statement as evidence discounting the statements of Lingenfelter’s examining physicians. When evaluating conflicting medical opinions, “the ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conelusory, and inadequately supported by clinical findings.” Thomas v. Barnhart, 278 F.3d 947, 957 *1045(9th Cir.2002). Dr. Caillouette’s 1998 statements regarding Lingenfelter’s disability status are brief, conclusory and inadequately supported by clinical findings that would indicate a change in Lingenfel-ter’s condition between 1996 and 1998.4 If the ALJ interpreted Dr. Caillouette’s 1998 statements as finding Lingenfelter to be disabled from all types of work, the ALJ could evaluate this evidence as conclusory and inadequately supported by clinical findings, and to the contrary accept the medical opinions of Lingenfelter’s examining physicians.

IV

Although we give the ALJ broad discretion to weigh conflicting medical evidence when determining a claimant’s credibility, the judgment of the district court must be reversed in this case. The ALJ and the Appeals Council did not articulate “specific, legitimate reasons” for disregarding the medical opinions of Lingenfelter’s treating physicians. Our precedent is clear that, “[e]ven if the treating doctor’s opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing ‘specific and legitimate reasons’ ” for doing so that are “supported by substantial evidence in the record.” Orn, at 632 (citation omitted); see also Thomas, 278 F.3d at 957; Tonapetyan, 242 F.3d at 1148. The decision of an ALJ fails this test when the ALJ completely ignores or neglects to mention a treating physician’s medical opinion that is relevant to the medical evidence being discussed. See Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir.1986). Such cases should be remanded to the agency for proper consideration of the evidence. See id. at 1408-09.

V

The opinion of the Court concludes that Lingenfelter is entitled to an award of benefits under the Smolen test. The test states that the district court should credit evidence or testimony that was rejected during the administrative process and remand for an immediate award of benefits where: “(1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.” Smolen, 80 F.3d at 1292.

The Smolen test does not apply here because there are “out-standing issues that must be resolved before a determination of disability can be made.” As stated above, Dr. Caillouette’s statement regarding Lin-genfelter’s disability is ambiguous, and it is exclusively within the province of the ALJ to interpret ambiguous evidence. A remand to the agency is required so that the ALJ may either interpret Dr. Caillouette’s *1046statement or hold additional hearings to determine the proper interpretation.

We have generally applied the Smolen test only in eases where the evidence in the record strongly supports a finding of disability. See, e.g., Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir.2004) (finding that, despite the finding of no disability by the ALJ, the record “clearly establishes that [claimant] cannot perform a sedentary job”); McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir.2002) (stating that the VA rating of disability, which the ALJ did not consider, was supported by several hundred pages of medical records and must be given “great weight”; hence “a finding of disability is clearly required”); Smolen, 80 F.3d at 1291-92 (noting that the claimant offered “extensive testimony” that was supported by two physicians’ opinions and the rest of the record, and that “the overwhelming evidence ... required the ALJ to find [claimant] disabled”); Swenson v. Sullivan, 876 F.2d 683, 688 (9th Cir.1989) (finding that the claimant’s testimony “was supported by substantial medical evidence,” and that the only expert testified that the claimant would not be able to engage in any work). In this case, to the contrary, the weight of the medical evidence in the record contradicts both the degree of Lingenfelter’s claimed disability and the medical opinions of Lingenfelter’s treating physicians. The Smolen test was designed to expedite the resolution of disability applicants’ claims, but should not be employed in cases where it would be likely to result in the wrongful award of benefits. Cf. Varney v. Sec’y of Health & Human Servs., 859 F.2d 1396, 1399 (9th Cir.1988).

Even if the Smolen test were applicable here, our precedents establish that we are not required to use the test in all cases where it applies. Rather, we have discretion in such cases to remand to the agency to make further credibility findings. Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir.2003); see Nguyen v. Chater, 100 F.3d 1462, 1466-67 (9th Cir.1996); Byrnes v. Shalala, 60 F.3d 639, 642 (9th Cir.1995); Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir.1993); Bunnell v. Sullivan, 947 F.2d 341, 348 (9th Cir.1991) (en banc) (affirming the district court decision remanding the case to the agency). In this case, I would remand to the agency for further credibility findings, given that the weight of the medical evidence contradicts Lingenfelter’s claim of complete disability.

VI

I would reverse the judgment of the district court and remand to the district court with instructions to remand to the Commissioner of the Social Security Administration for further administrative proceedings consistent with this dissent.

. The "clear and convincing reasons" standard applies to the reasons the ALJ must provide for disbelieving the credibility of the claimant’s testimony. See Morgan, 169 F.3d at 599. Here, these reasons include the significant weight of the medical opinion in this case, which, as discussed in the subsequent footnote, contradicts Lingenfelter’s testimony that he must lie down frequently every day and elevate and ice his feet repeatedly during the day. The "specific, legitimate reasons” standard applies to the reasons the ALJ must give for disregarding the opinions of treating physicians, such as Dr. Caillouette and Dr. Tischler, when determining what the weight of the medical opinion says in a particular case.

. In February 1995, Dr. Ovadia slated under "work restrictions” that Lingenfelter should be precluded only from prolonged standing and walking, running or jumping. In April 1997, Dr. Woods stated that Lingenfelter was limited to "semi-sedentary work.” In February 1998, Dr. Sung found that Lingenfelter had the capacity to sit for a full day, walk around the office, and lift up to 10 pounds frequently. In March 1998, Dr. Green conducted a thorough examination of Lingenfel-ter's medical record and performed a physical exam, and agreed with Dr. Ovadia’s opinion of the extent of Lingenfelter's disability. In addition, a non-examining physician, Dr. Me-bane, concluded after a thorough review of Lingenfelter's medical record that Lingenfel-ter could sit about 6 hours in an 8-hour workday, stand or walk for at least two hours in an 8-hour workday, and lift up to 10 pounds frequently.

. Other facts in the record support the opinion of the Court’s conclusion that Dr. Cail-louette believed Lingenfelter to be disabled from all types of work by 1998. Lingenfelter revisited Dr. Caillouette with a "new problem" in November 1996 — the "sudden onset of right foot pain.” Dr. Caillouette stated that Lingenfelter had "severe pain” in his feet on two occasions in the fall of 1997, and prescribed a wheelchair for Lingenfelter in October 1997. I do not adopt any specific interpretation of Dr. Caillouette’s statement. I only contend that there is more than one reasonable interpretation of the statement, and that it is not our prerogative to adopt, de. novo, our own interpretation.

. The opinion of the Court states that Dr. Caillouette submitted more than 50 pages of medical reports and clinical findings to support his February 1998 opinion that Lingen-felter was disabled from all work. I disagree with this characterization of the record. The lab tests and postoperative surgery report in the record from Dr. Caillouette all date from June 1996 or earlier, before Dr. Caillouette’s September 1996 report finding Lingenfelter to be disabled only from heavy work as a laborer. They provide no support for Dr. Cail-louette’s revised February 1998 assessment of Lingenfelter’s disability. The findings from Dr. Caillouette in the record after 1996 up through February 1998 primarily consist of brief statements reporting Lingenfelter’s subjective level of pain. A claimant’s subjective complaints form an inadequate basis for a physician’s finding of disability. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). Dr. Caillouette’s clinical findings are, in my view, inadequate to support his revised 1998 assessment of Lingenfelter's disability.