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 raises the following issues:
1. Whether the Administrative Law Judge ("ALJ") properly considered the treating physician's opinion; and
2. Whether the ALJ properly considered the law witness testimony.
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 DID NOT PROPERLY CONSIDER THE OPINION OF TREATING PSYCHIATRIST DR. UMAKANTHAN
In his Decision (AR 9-16), the ALJ determined that one of Plaintiff's severe impairments is depression, but that she does not meet or equal a Listing as defined in 20 C.F.R. Part 404, subpart P, Appendix 1. (AR 11.) The ALJ noted that Dr. Umakanthan completed a "check-off form" in November 2008 which indicated mental functional limitations ranging from moderate to extreme. (AR 14, citing AR 408-409.) This opinion was rejected because it was found to be "entirely conclusory and without basis or support in the record." (AR 14.) Instead, the ALJ found that the opinion of the psychiatric consultative examiner was "credible." (Id.) (See Complete Psychiatric Evaluation of Dr. Yang, dated January 18, 2006, at AR 185-189.)
Plaintiff frames her first issue as a challenge to the ALJ's rejection of Dr. Umakanthan's check-off form, asserting that, contrary to the ALJ's conclusion, the report is not conclusory, but is based on and consistent with numerous prior treatment notes. For the reasonsto be discussed the Court agrees with Plaintiff's contention.
The Ninth Circuit has repeatedly reaffirmed the principle that greatest weight is ordinarily given to the opinions of treating physicians versus those physicians who do not treat:
"We afford greater weight to a treating physician's opinion because 'he is employed to cure and has a greater opportunity to know and observe the patient as an individual.'" Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989), quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987).
Even so, the treating physician's opinion is not necessarily conclusive as to either a physical condition or the ultimate issue of disability. Id., citing Rodriguez v. Bowen, 876 F.2d 759, 761-62 & n. 7 (9th Cir. 1989) The ALJ may disregard the treating physician's opinion whether or not that opinion is contradicted, Id., citing Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986). However, if the ALJ chooses to do so, the ALJ must '"'make findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record.'"' Id., citing ...