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Tamburro v. Astrue

January 8, 2010


The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge


Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for supplemental security income ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

Plaintiff filed an application for SSI benefits on October 4, 2005, alleging that she became disabled on June 11, 2002, due to a back disorder, status-post leg fracture, affective mood disorder, and alcohol addiction disorder. [JS 2]. In a March 28, 2008 hearing decision that constitutes the Commissioner's final decision in this matter, an administrative law judge ("ALJ") concluded that plaintiff was not disabled because she retained the residual functional capacity ("RFC") to perform her past relevant work as a short order cook and cashier. [Administrative Record ("AR") 17, 21-22].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r, Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Social Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).


Treating psychiatrist

Plaintiff contends that the ALJ's reasons for rejecting the controverted opinion of her treating psychiatrist, Carlos Pieroni, M.D., are legally insufficient. [See JS10].

Where the opinion of a treating or examining physician is uncontroverted, the ALJ must provide clear and convincing reasons, supported by substantial evidence in the record, for rejecting it. If contradicted by that of another doctor, a treating or examining source opinion may be rejected for specific and legitimate reasons that are based on substantial evidence in the record. Batson v. Comm'r of Social Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Tonapetyan v. Halter, 242 F.3d 1144, 1148-49 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830-831 (9th Cir. 1995).

On November 7, 2005, Dr. Pieroni completed a mental disorder questionnaire form. [AR 226-230]. He stated that he first examined plaintiff on September 25, 2005. Dr. Pieroni's questionnaire responses appear to be based in part on his observations of plaintiff at her appointments and in part on plaintiff's self-reported history and subjective symptoms. [See, e.g., AR 226 ("[M]annerisms appear fairly normal though client seems nervous and tense often. Appearance is fairly average.... [¶] Client reports history of deep depressed moods and intense anger impulses. Auditory hallucinations, paranoid ideation - feelings of 'people out to get her,' suspiciousness, guardedness, agitation, guilt feelings, memory deficits, forgetfulness. 'I cry and laugh for no reason,"I'm so forgetful that I sometimes forget where I am,"I misplace or lose things and accuse others of taking them.' All these problems since childhood.")]. Dr. Pieroni gave a diagnosis of psychotic disorder not otherwise specified ("NOS"). [AR 230]. He noted that plaintiff was taking Risperdal, an antipsychotic medication, 0.25 milligrams per day, and Zoloft, an antidepressant, 50 milligrams per day. [AR 230]. Dr. Pieroni indicated that he expected significant improvement in plaintiff's condition "around June 26, 2006," that is, about 9 months from the date he began treating her. [AR 230].

The ALJ articulated four reasons for declining to give Dr. Pieroni's November 2005 opinion "much weight." [AR 18-19]. First, the ALJ reasoned that Dr. Pieroni "had only been seeing the claimant for about six weeks," and "[t]herefore, there is no longitudinal treatment history to support any long-term knowledge of the claimant's status." [AR 18]. Treating source opinions are given more weight because those sources are likely to be most able to provide a "detailed, longitudinal picture" of the claimant's medical impairments, and the length, frequency, nature and extent of treatment are among the factors weighed in evaluating treating source opinions. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); see Lester, 81 F.3d at 832-833. While six weeks is not a lengthy treatment relationship, it is not too brief a period to qualify Dr. Pieroni as a treating physician whose opinion is, or at least may be, entitled to deference. In contrast, Dr. Malancharuvil, the medical expert whose opinion the ALJ adopted, never treated or even examined plaintiff. [AR 21]. See Le v. Astrue, 529 F.3d 1200, 1201 (9th Cir. 2008)( "It is not necessary, or even practical, to draw a bright line distinguishing a treating physician from a non-treating physician. Rather, the relationship is better viewed as a series of points on a continuum reflecting the duration of the treatment relationship and the frequency and nature of the contact.")(quoting Benton v. Barnhart, 331 F.3d 1030, 1038 (9th Cir.2003)); Ghokassian v. Shalala, 41 F.3d 1300, 1303 (9th Cir. 1994) (holding that a physician was the claimant's treating physician, and therefore that his conclusions should have been granted deference, where the claimant saw that physician twice within a 14-month period, saw no other doctors during that period, requested that the physician treat him, and the physician referred to the claimant as "my patient"). Therefore, the length of plaintiff's treatment relationship with Dr. Pieroni was not a valid reason for rejecting his opinion in favor of that of the nonexamining medical expert.

Second, the ALJ concluded that Dr. Pieroni indicated that plaintiff would not meet the twelve-month duration requirement for SSI benefits. In his November 2005 report, Dr. Pieroni said that plaintiff's condition could be expected to improve around June 26, 2006, about nine months after the date of her first appointment with him on September 26, 2005. [AR 230]. The ALJ inferred that plaintiff's mental impairment had lasted, or was expected to last, for only the nine-month period from September 26, 2005 to June 26, 2006. That inference is unwarranted in light of the record as a whole. Dr. Pieroni did not say when he believed plaintiff's mental impairment arose. He did not suggest that plaintiff's mental impairment actually began on the day of her first visit to him, nor does his initial evaluation report support such an inference. In that report, which is dated September 26, 2005, Dr. Pieroni noted that plaintiff reported that she had experienced mental problems similar to her then-current symptoms since childhood. Both plaintiff and her boyfriend, who accompanied her to the initial appointment with Dr. Pieroni, said that she had been experiencing mood swings, depression, anger problems, and paranoia for years. [See AR 310]. On her application for SSI benefits, plaintiff alleged that she became disabled in June 2002. [AR 76].

Plaintiff's testimony and medical records indicate that she continued to see Dr. Pieroni for psychiatric treatment at least through January 2008. [AR 273, 280, 288, 291, 367]. In October 2006, he noted that plaintiff was "improving," although she still exhibited psychotic symptoms. [AR 273]. She remained sober. Her diagnoses and medication were unchanged. [AR 273]. During the January 2008 hearing, plaintiff testified that she ...

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