Kager v. Astrue

256 F. App'x 919
Court of Appeals for the Ninth Circuit·Decided November 26, 2007·No. No. 05-36136·Published·Cited by 13 cases

Opinions

MEMORANDUM **

Linda D. Kager (“Kager”) appeals the district court’s order affirming the Commissioner of Social Security’s denial of her application for Disability Insurance benefits under Title II of the Social Security Act (“the Act”). We reverse and remand for further proceedings.

We agree with Kager’s contention that the administrative law judge (“ALJ”), in assessing Kager’s residual functional capacity, failed to provide specific and legitimate reasons for rejecting the opinion of Kager’s treating physician, Dr. Blaski. She stated that Kager was disabled following a low-impact motor vehicle accident in February 1996.1 Although the opinion of Dr. Blaski was contradicted by the non-examining physician Dr. Knudsen, “a treating physician’s opinion on disability, even if controverted, can be rejected only with specific and legitimate reasons supported by substantial evidence in the record.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.1998).

In his decision,2 the ALJ acknowledged that Dr. Blaski opined in 1996 that Kager was disabled, but apparently gave that opinion no weight because it was set forth in “brief, conclusory remarks without reference to specific limitations and clinical findings” except for a statement that Kager could not lift more than 10 pounds. The ALJ also found that Dr. Blaski’s treatment notes from that time showed that Kager’s examination was unremarkable, and lacked “significant objective findings that would support an inability to work.” While it is true that the notes setting forth Dr. Blaski’s opinion did not themselves refer to specific limitations or clinical findings, Dr. Blaski’s other treatment notes did contain objective findings supporting her opinion that Kager was unable to work as an electrologist.3

For example, the treatment notes reveal that in June 1996, only two months before Dr. Blaski opined that Kager was disabled, Dr. Blaski found tenderness and muscle [922] spasms in the paraspinous muscles of Kager’s c-spine and thoracic spine, found that Kager’s neck had decreased range of motion in all directions, and found that Kager could not elevate her arms beyond 90 degrees or reach behind her back. In July 1996, Dr. Blaski found that Kager had c-spine and thoracic strain and generalized weakness of the arms and legs.

Dr. Blaski noted similar findings in 1997, when she found that Kager had limitation of motion in elevating her arms, had tenderness at the AC joint area of her right shoulder, and could abduct her right arm only about 30% of the way. Similarly, in 1998, Dr. Blaski found that Kager had limited range of motion in her right arm with inability to abduct beyond 90 degrees or reach behind her back. Dr. Blaski also noted that a massage therapist had found muscle spasms and limited motion of Kager’s right shoulder.

These findings support Dr. Blaski’s opinion that Kager was unable to work as an electrologist. It was established at the hearings that work as an electrologist requires constant reaching with the arms and making fine hand movements, and Kager’s ability to make both motions could reasonably have been impaired by the physical limitations found by Dr. Blaski. Accordingly, Dr. Blaski’s disability opinion was well supported by objective evidence and was required to be given substantial weight by the ALJ. See 20 C.F.R. § 404.1527(d)(3) (“The more a medical source presents relevant evidence to support an opinion ... the more weight we will give that opinion.”); Orn v. Astrue, 495 F.3d 625, 631 (9th Cir.2007) (“[Factors relevant to evaluating any medical opinion ... include the amount of relevant evidence that supports the opinion and the quality of the explanation provided.... ”).

The ALJ’s failure to provide specific and legitimate reasons for giving no weight to Dr. Blaski’s disability opinion is pertinent, and not harmless error, because the ALJ found Kager not disabled on the ground that she could perform her past relevant work as an electrologist and word processor (which requires arm and hand movements not dissimilar to those required for working as an electrologist). Cf. Batson v. Comm’r of the SSA, 359 F.3d 1190, 1197 (9th Cir.2004) (finding error by ALJ to be harmless).

We also agree with Kager that the ALJ failed to provide specific and legitimate reasons for rejecting the opinions of Drs. Cawthon, Zammit, Herring and Pepper that Kager was suffering, or might have been suffering, from thoracic outlet syndrome. An ALJ may not reject a treating doctor’s opinion, even if contradicted by another doctor, without providing specific and legitimate reasons supported by substantial evidence in the record. Orn, 495 F.3d at 632. “The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors’, are correct.” Id. (citation omitted).

In March 1999, Dr. Cawthon, Kager’s treating neurologist, opined that Kager had traumatic thoracic outlet syndrome dating back to her 1996 car accident. Dr. Cawthon based his opinion on a review of “all of [Kager’s] records,” including his own finding that the Adson’s test produced numbness in both arms and hands and pain in the upper arms. Dr. Zammit, who found that Kager had the “classic symptomatology that impairs her driving and daily activities such as vacuuming and hair grooming,” agreed that Kager’s “clinical picture does suggest thoracic outlet syndrome (left more than right) as a probably [sic] diagnosis.”

Dr. Herring, while finding that the Ad-son’s test was negative and that an EMG showed no neurogenic thoracic outlet syn[923] drome, conducted Doppler studies to determine whether Eager might have arterial thoracic outlet syndrome. Dr. Herring found the results of the Doppler studies to be “fairly dramatic” because they showed “significant arterial compromise.” Dr. Pepper agreed that there was objective evidence of “arterial compression in the thoracic outlet with arm abduction maneuvers, worse on the right than the left.” Dr. Pepper was, however, puzzled by the fact that Eager’s symptoms were worse on the left than on the right, and explained to Eager that surgery to relieve the arterial compression could increase her tolerance to elevating activities but would not be expected to alleviate all her head, neck and left leg symptoms. Accordingly, Eager did not seek surgery. Nonetheless, Dr. Herring concluded that Eager’s Doppler studies were consistent with thoracic outlet syndrome and interpreted Dr. Pepper’s opinion to mean that Eager “may have thoracic outlet entrapment as a component of her discomfort.”

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Kager v. Astrue, 256 F. App'x 919 (9th Cir. 2007).

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