The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.
Plaintiff filed a complaint on June 18, 2008, seeking review of the Commissioner's denial of benefits. The parties filed a consent to proceed before a United States Magistrate Judge on October 14, 2008. Plaintiff filed a motion for summary judgment on December 3, 2008. Defendant filed a cross-motion for summary judgment on December 19, 2008. The Court has taken both motions under submission without oral argument. See L.R. 7-15; "Order," filed June 20, 2008.
BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
Plaintiff asserts disability beginning April 1, 2006, based primarily on alleged mental impairments (Administrative Record ("A.R.") 26-30, 68-71). Dr. Villar, a treating psychiatrist, opined Plaintiff is "seriously limited" with respect to certain mental abilities and aptitudes needed to perform work (A.R. 190-91).
Dr. Villar specifically opined that Plaintiff's impairments or treatment would cause her to be absent from work more than four days per month (A.R. 191). Dr. Enge, another treating psychiatrist, rated Plaintiff's Global Assessment of Functioning ("GAF") at 47 (A.R. 155).
An Administrative Law Judge ("ALJ") found Plaintiff not disabled (A.R. 10-16). The ALJ rejected Dr. Villar's opinions asserting, inter alia, that "treating notes" do not support the opinions (A.R. 14-15). The ALJ failed to mention Dr. Enge's GAF assessment (A.R. 10-16). The Appeals Council denied review (A.R. 2-4).
Under 42 U.S.C. section 405(g), this Court reviews the Commissioner's decision to determine if: (1) the Commissioner's findings are supported by substantial evidence; and (2) the Commissioner used proper legal standards. See Swanson v. Secretary, 763 F.2d 1061, 1064 (9th Cir. 1985).
A treating physician's conclusions "must be given substantial weight." Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) ("the ALJ must give sufficient weight to the subjective aspects of a doctor's opinion . . . This is especially true when the opinion is that of a treating physician") (citation omitted). Even where the treating physician's opinions are contradicted,*fn1 "if the ALJ wishes to disregard the opinion[s] of the treating physician he . . . must make findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987) (citation, quotations and brackets omitted); see Rodriquez v. Bowen, 876 F.2d at 762 ("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") (citation and quotations omitted); McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) ("broad and vague" reasons for rejecting the treating physician's opinions do not suffice).
Section 404.1512(e) of 20 C.F.R. provides that the Administration "will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, the report does not contain all of the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques." See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) ("If the ALJ thought he needed to know the basis of Dr. Hoeflich's opinions in order to evaluate them, he had a duty to conduct an appropriate inquiry, for example, by subpoenaing the physicians or submitting further questions to them. He could also have continued the hearing to augment the record") (citations omitted); see also Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) ("the ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered").
In the present case, the ALJ erred in connection with the opinions of the treating physicians. Further inquiry of Dr. Villar should have preceded a final determination of whether Dr. Villar's opinions are not adequately supported. See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); 20 C.F.R. § 404.1512(e). The ALJ also should not have rejected Dr. Enge's opinion without inquiring further of Dr. Enge and without discussing the opinion. See Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990) (implicit ...