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Guerrero v. Astrue

March 5, 2010


The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge



Plaintiff Mark Guerrero brings this action seeking reversal of a decision by Defendant Social Security Administration ("the Agency"), denying his application for supplemental security income. He claims that the Administrative Law Judge ("ALJ") erred when he: 1) failed to properly consider the treating psychiatrist's opinion, 2) failed to properly consider a consulting psychiatrist's opinion, 3) rejected Plaintiff's testimony, 4) failed to include all of Plaintiff's impairments in the hypothetical question to the vocational expert, and 5) concluded that Plaintiff could perform his former job as a parking lot attendant. (Complaint at 3.) For the reasons set forth below, the Court concludes that the ALJ erred and remands the case to the Agency for further proceedings consistent with this opinion.


Plaintiff was born on September 26, 1965, and was 41 years old at the time of the first administrative hearing. (Administrative Record ("AR") 245.) He completed the eleventh grade and, thereafter, a trade school for welders. (AR 246-47.) Plaintiff held numerous jobs between 1990 and 2000. (AR 114.) From 1998 to 2000, he worked as a driver at a parking lot owned by an automobile auction company. (AR 121.) Plaintiff was fired from that job when he ran over another employee's foot and she sued the company. (AR 121, 178, 222, 249.) He did not work after 2000. (AR 114.)

Between June and September 2002, Plaintiff was treated for depression, fatigue, and an inability to concentrate at a San Bernardino County mental health clinic. (AR 163-75.) Plaintiff received counseling and medication during this period. (AR 163-75.) In September 2002, he stopped appearing for his appointments and was dropped from treatment. (AR 162.) There are no other mental health treatment records in the file.

In March 2005, Plaintiff filed an application for supplemental security income, alleging disability since October 1, 2000, due to attention deficit disorder and chronic fatigue syndrome. (AR 105, 108.) The onset date was later amended to March 2005. (AR 247-48.)

Plaintiff's application was denied by the Agency initially and on reconsideration. Plaintiff then requested and was granted a hearing before an ALJ. On July 31, 2007, the ALJ held a hearing in which Plaintiff appeared with counsel and testified. (AR 238-55.) The hearing was then continued so that Plaintiff could undergo a second psychiatric examination. (AR 254-55.) Following that examination, the ALJ held a second hearing, at which Plaintiff again appeared with counsel and testified. (AR 256-79.)

On January 25, 2008, the ALJ issued a decision denying Plaintiff's claim at step two of the Agency's five-step sequential evaluation process, concluding that Plaintiff's impairments (attention deficit hyperactive disorder and a depressive disorder) were not severe. (AR 11-16.) Plaintiff appealed to the Appeals Council, which denied his request for review. (AR 3-6.) He then commenced this action.


Plaintiff claims that the ALJ erred in failing to properly consider the opinions of his treating psychiatrist and a consulting psychiatrist. (Joint Stip. at 3-5, 7-8.) He also complains that the ALJ failed to set forth any reason for rejecting his testimony. (AR 11-12.) For the reasons explained below, the Court agrees.*fn1

A. The Treating Physician's Opinion

Plaintiff contends that the ALJ failed to properly consider the treating psychiatrist's opinion. The Agency disagrees. It argues that the ALJ did all that he was required to do with regard to the treating psychiatrist's opinion. For the following reasons, the Court sides with Plaintiff and concludes that the ALJ erred in addressing the treating psychiatrist's opinion.

In general, the opinion of a treating doctor is given deference over the opinions of non-treating doctors in social security cases. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007); see also Aukland v. Massanari, 257 F.3d 1033, 1037 (9th Cir. 2001). A treating doctor'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. See Social Security Ruling ("SSR") 96-2p; Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001). An ALJ can only discount a treating doctor's opinion for specific and legitimate reasons, supported by substantial evidence in the record. Orn, 495 F.3d at 631 (citing Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996)). In determining what weight to afford a treating doctor's opinion, an ALJ must consider all of the evidence in the doctor's records, both the evidence that supports the ALJ's conclusion and the evidence that undermines it. See Reddick v. Chater, 157 F.3d 715, 722-23 (9th Cir. 1998) (noting it is impermissible for ALJ to develop evidentiary basis by "not fully accounting for the context of materials or all parts of the testimony and reports"). Further, even where a treating physician's opinion is not to be given controlling weight because it is not "well-supported" or because it is inconsistent with other evidence in the record, an ALJ must still consider various ...

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