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Miller v. Astrue

March 4, 2010

JODI MILLER, ON BEHALF OF M.M., PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: David T. Bristow United States Magistrate Judge

MEMORANDUM OPINION; AND ORDER THEREON

Plaintiff filed a complaint ("Complaint") on March 17, 2009, seeking review of the Commissioner's denial of M.M.'s application for supplemental security income ("SSI") benefits. Now pending before the Court is the parties' Joint Stipulation ("Joint Stip."). This Memorandum Opinion shall constitute the Court's findings of fact and conclusions of law.

DISPUTED ISSUES

As reflected in the parties' Joint Stipulation, the disputed issues here are as follows:

1. Whether the Administrative Law Judge ("ALJ") properly rejected the opinions of plaintiff's treating psychiatrist.

2. Whether the ALJ properly rejected the opinions of plaintiff's treating mental health clinician.

3. Whether the ALJ properly developed and considered the record with respect to M.M.'s teacher's statements.

DISCUSSION

I. Reversal Is Warranted Based On The ALJ's Failure To Properly Reject The Treating Psychiatrist's Opinion

"By rule, the Social Security Administration favors the opinion of a treating physician over non-treating physicians." Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007); see also Aukland v. Massanari, 257 F.3d 1033, 1037 (9th Cir. 2001); Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). A treating physician's opinion as to the nature and severity of an impairment must be given controlling weight if the opinion is well supported and not inconsistent with other substantial evidence. SSR 96-2p; Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001). Even where the treating physician's opinion is contradicted by other medical evidence in the record, that opinion is entitled to deference unless there are specific and legitimate reasons, supported by substantial evidence in the record, for rejecting it. Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001).

Here, the ALJ rejected the treating psychiatrist's opinions in favor of that of the consulting medical expert. (AR 15.) Although the ALJ summarized the medical expert's testimony regarding the consistencies and inconsistencies between his opinion and those of other physicians, the ALJ did not give any specific reasons for rejecting the opinions of Louis F. Glatch, M.D., the treating psychiatrist. (AR 15-16.) At one point, the ALJ stated that the medical expert's opinion is "consistent" with the rest of the medical evidence, seemingly implying that he had not rejected Dr. Glatch's opinions but rather that those opinions were incorporated within the opinions of the medical expert. However, the ALJ then went on to reject Dr. Glatch's Global Assessment of Functioning ("GAF") score in favor of that reported by the consultative psychologist. (AR 15-16.) More significant is the ALJ's adoption of the medical expert's opinion when neither the medical expert nor the ALJ addressed Dr. Glatch's June 12, 2007, diagnosis of Tourette Syndrome, which was noted by plaintiff in the paperwork submitted to the Agency. (AR 175, 221.)

The Court notes that there was some question at the hearing before the ALJ as to Dr. Glatch's GAF score. Dr. Glatch reported M.M.'s GAF to be "45/60." (AR 221.) The medical expert testified that this was "peculiar" and that his best interpretation of this report was that M.M.'s score was "between 45 and 60." (AR 45-46.) The ALJ adopted the medical expert's interpretation. (AR 16.) However, an ALJ has a duty to develop the record and obtain all of a claimant's medical records, even when the claimant is represented by counsel. Smolen, 80 F.3d at 1288. 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 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"). Thus, if the ALJ questioned Dr. Glatch's GAF assessment, the ALJ should have recontacted Dr. Glatch.

Accordingly, the action must be remanded to allow the ALJ to properly consider the treating psychiatrist's opinions, particularly his GAF assessment and his diagnosis of Tourette Syndrome.

II. Reversal Is Warranted Based On The ALJ's Alleged Failure To Consider The Opinion Of Plaintiff's ...


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