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Pham v. Astrue

February 4, 2009

PHAT PHAM, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge

MEMORANDUM OPINION AND ORDER (Social Security Case)

This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the Administrative Record ("AR") before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified AR.

Plaintiff asserts the following issues:

1. Failure of the Administrative Law Judge ("ALJ") to properly evaluate the treating psychiatrist's opinion;

2. Failure to properly evaluate Plaintiff's testimony; and

3. Error at Step Four of the sequential evaluation process.

This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that for the reasons set forth, the decision of the Commissioner must be reversed.

I. THE ALJ FAILED TO PROPERLY EVALUATE THE OPINION OF THE TREATING PSYCHIATRIST

Plaintiff was consistently treated by Dr. Hochberg, a board certified psychiatrist, from February 18, 2004 to May 14, 2007. (AR 120-127, 222-233.) Dr. Hochberg completed a Psychiatric Review Technique Form ("PRTF"). (AR 235-247.) Dr. Hochberg's records indicate that Plaintiff has auditory and visual hallucinations, paranoid ideations, and is fearful (AR 237), and his affect is consistent with depressive syndrome. (AR 238.) The PRTF also diagnoses extreme limitations in the important functional areas of concentration, persistence and pace, activities of daily living, maintaining social functioning, and episodes of decompensation. (AR 245.) Because of apparent side effects, his medications were substantially modified in 2005. (AR 223-229.) In April 2007, Dr. Hochberg noted regression with symptoms of hallucinations, depression and insomnia, and again, his medications were changed. (AR 224.)

The record also contains a report of a complete psychiatric evaluation ("CE") performed by Dr. Yang on May 10, 2005 at the request of the Department of Social Services. The report contains an extremely brief Mental Status Examination (AR 148), and diagnoses depressive disorder, NOS, on Axis I. (Id.)

In his decision, the ALJ essentially threw out Dr. Hochberg's opinions, and instead relied almost exclusively upon Dr. Yang's findings. (See, e.g., AR 17-18.) By stating at the outset that no treating or examining physician has found that Plaintiff has a mental condition which would meet the criteria of any listed impairment (AR 17), the ALJ simply ignored the PRTF, which did find Listing Level Impairments. (AR 235.)

Why, then, did the ALJ completely reject Dr. Hochberg's findings? In the Decision, the ALJ indicates that Dr. Hochberg's findings contrast "sharply" with the "other psychiatric evidence of record." (AR 22.) Apparently, this refers to Dr. Yang's one-time assessment. The ALJ also complains that Dr. Hochberg's treatment notes are "largely illegible" but, to the extent that the ALJ found them legible, he noted that they often comment that Plaintiff is "doing well." (AR 22.)

In analyzing the adequacy of this analysis, the parties well understand that the opinion of the treating physician, while it need not be blindly accepted by an ALJ, may only be rejected in favor of that of an examining physician (who performed independent testing) where the decision sets forth specific and legitimate reasons based on substantial evidence in the record. (See Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).) Nothing of the sort occurred in this case.

First, the fact that Dr. Hochberg's conclusions differ from those of Dr. Yang does not, in and of itself, constitute sufficient reason to completely reject Dr. Hochberg's opinion. This should be especially obvious because Dr. Hochberg treated Plaintiff for three years. While a few words in Dr. Hochberg's ...


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