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Susan Hacker v. Michael J. Astrue

June 22, 2011


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


I. INTRODUCTION Plaintiff Susan Hacker appeals a decision by Defendant Social Security Administration ("the Agency"), denying her application for Supplemental Security Income ("SSI") benefits. She claims that the Administrative Law Judge ("ALJ") erred when he: (1) failed to consider all of her treating physician's evaluations; (2) failed to properly consider a consulting doctor's findings; (3) concluded that Plaintiff's impairments were not severe; and (4) failed to determine Plaintiff's residual functional capacity. (Joint Stip. at 3-6, 8-11, 12-15, 16-18.) Because the Agency's decision that Plaintiff was not disabled within the meaning of the Social Security Act is not supported by substantial evidence, it is reversed.


Plaintiff applied for SSI on May 1, 2007, alleging that she had been disabled since January 1, 2005, due to mental illness and depression. (Administrative Record ("AR") 9, 95-100.) The Agency denied her application initially and again on reconsideration. (AR 38-41, 44-48.) Plaintiff then requested and was granted a hearing before an ALJ. (AR 53-54, 60-63.) On March 5, 2009, Plaintiff appeared with counsel and testified at the hearing. (AR 20-35.) On September 15, 2009, the ALJ issued a decision denying benefits. (AR 9-15.) Plaintiff appealed to the Appeals Council, which denied review. (AR 1-4.) She then commenced this action.


A. The ALJ's Failure to Consider the Treating Psychiatrist's 2005 Evaluation

Plaintiff contends that the ALJ erred by failing to consider a December 21, 2005 evaluation performed by her treating psychiatrist Guia Montenegro. (Joint Stip. at 3-6.) Dr. Montenegro determined at that time that Plaintiff suffered from Major Depressive Disorder, recurrent, severe with psychotic features, and assessed a Global Assessment of Functioning score, or "GAF," of 50.*fn1 (AR 186.) For the reasons set forth below, the Court concludes that the ALJ should have considered the 2005 evaluation and his failure to do so was error.

"By rule, the [Agency] favors the opinion of a treating physician over non-treating physicians." Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Thus, a treating physician's opinion that is well-supported and not inconsistent with other substantial evidence in the record will be given controlling weight. Id. An ALJ may not reject the uncontroverted opinion of a treating physician without giving "clear and convincing reasons" for doing so. Id. at 631-32. Even if the treating physician's opinion is contradicted by another physician, the ALJ may not reject it "without providing 'specific and legitimate reasons' supported by substantial evidence in the record for so doing." Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)(quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).

In his decision denying benefits, the ALJ failed to consider treating psychiatrist Montenegro's 2005 evaluation or the accompanying GAF score. (AR 13.)*fn2 Dr. Montenegro was a treating physician and the ALJ should have considered her 2005 evaluation in determining whether Plaintiff was disabled in 2007. See Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988). Similarly, while an ALJ is not required to rely on GAF scores in formulating his decision, see Howard v. Commissioner, 276 F.3d 235, 241 (6th Cir. 2002), the scores are probative of a claimant's mental health on a given day and should at least be acknowledged. See, e.g., Hacker v. Astrue, 2008 WL 4224952, at *5 n.2 (W.D. Okla. Sept. 10, 2008) ("[I]t was error for the administrative law judge to not at least address the GAF scores and explain why they were not relevant.")

The Agency suggests that the ALJ's silent disregard of the 2005 assessments was proper because they were "wholly irrelevant" to Plaintiff's 2007 SSI application and because the ALJ considered Dr. Montenegro's 2007 treatment records. (Joint Stip. at 6-7.) The Court disagrees. The 2005 evidence had some relevance to Plaintiff's condition in 2007. As to the ALJ's consideration of the 2007 records, that consideration did not remedy the ALJ's failure to consider the 2005 records. Moreover, even if these were the ALJ's reasons for ignoring the 2005 records, neither the Court nor the Agency is at liberty to rely on them because the ALJ did not include them in his decision. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003).

Having concluded that the ALJ erred is not the end of the inquiry, however. In order for Plaintiff to prevail, the Court must also determine that the error affected the outcome of the case. See Stout v. Comm'r, 454 F.3d 1050, 1055 (9th Cir. 2006) (defining harmless error in social security context). In a situation such as this, where the ALJ has not provided any reason for ignoring the evidence, the Court can conclude that the error is harmless only if it "can confidently conclude that no reasonable ALJ, when fully crediting [the evidence], could have reached a different disability determination." Id. at 1056; see, also, Carmickle v. Comm'r, 533 F.3d 1155, 1162-63 (9th Cir. 2008) (explaining that, under Stout, where ALJ provides no reason for rejecting evidence at issue, reviewing court must consider whether ALJ would have made different decision if he relied on the rejected evidence). The Court is not able to say that that is the case, here. It seems likely that a reasonable ALJ could have determined based on the 2005 records that Plaintiff's mental/ psychological impairment was severe in 2007. These records establish that Plaintiff had a mental/psychiatric breakdown in March 2005. And, though she voluntarily presented herself at a hospital for treatment, she was involuntarily committed after she was evaluated and determined to be a danger. (AR 148.) Further, though her condition improved by May 2007, the relevant date for Plaintiff's benefits claim, the Court cannot say with certainty that a reasonable ALJ considering the 2005 records in conjunction with the 2007 records would have concluded that Plaintiff's impairment was not severe.

For these reasons, the Court concludes that the ALJ erred when he failed to consider the 2005 records and that the error was not harmless. As such, the issue is remanded to the Agency for further consideration.

B. The Consultant's Evaluation In her second claim of error, Plaintiff contends that the ALJ erred in failing to consider the opinion of consulting psychiatrist Robert Paxton. (Joint Stip. at 8-11.) Plaintiff argues that the ALJ was required to give Dr. Paxton's findings some weight, unless the ALJ specifically chose to reject them. (Joint Stip. at 9-11.) For the following reasons, the Court agrees.

ALJs are required to consider the opinions of non-examining, consulting doctors. 20 C.F.R. ยงยง 404.1527(f)(1)-(2); 416.927(f)(1)-(2); Social Security Ruling 96-6p; see also Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (suggesting that a non-examining doctor's opinion is entitled to at least some weight). In order to reject the opinion of a consulting doctor, the ALJ must provide specific and legitimate reasons for doing so. See Dogsleep v. Astrue, 266 F. App'x 664, 665 (9th Cir. 2008) (explaining ALJ may not ignore findings of reviewing physician and must either accept them or give specific and legitimate reasons for rejecting them); Blanquet v. Astrue, No. 08-0032, 2008 WL 5411460, at *3 (C.D. Cal. Dec. 23, 2008); see also Social Security Ruling 96-6p ("Administrative law judges and the Appeals ...

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