The opinion of the court was delivered by: Robert N. Block United States Magistrate Judge
ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS
The Court now rules as follows with respect to the four disputed issues listed in the Joint Stipulation.*fn1
A. The Court is unable to affirm the ALJ's determination that plaintiff's mental impairments had sufficiently improved after September 2, 2009 to enable him to perform his past relevant work.
Disputed Issue No. 1 is directed to the ALJ's determination that plaintiff's mental impairments had sufficiently improved after September 2, 2009 to enable him to perform his past relevant work. In making this determination, the ALJ credited the opinions rendered at the administrative hearing by the Medical Expert, Dr. Glassmire, over the opinion of plaintiff's longtime treating physician, Dr. Payne, who had opined on April 27, 2010 that plaintiff was unable to work and would most likely deteriorate in any work setting. (See AR 487.)
The law is well established in this Circuit that a treating physician's opinions are entitled to special weight because a treating physician is employed to cure and has a greater opportunity to know and observe the patient as an individual. See McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). "The treating physician's opinion is not, however, necessarily conclusive as to either a physical condition or the ultimate issue of disability." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The weight given a treating physician's opinion depends on whether it is supported by sufficient medical data and is consistent with other evidence in the record. See 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). If the treating physician's opinion is uncontroverted by another doctor, it may be rejected only for "clear and convincing" reasons. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996); Baxter v. Sullivan, 923 F.3d 1391, 1396 (9th Cir. 1991). Where, as here, the treating physician's opinion is controverted, it may be rejected only if the ALJ makes findings setting forth specific and legitimate reasons that are based on the substantial evidence of record. See, e.g., Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) ("A treating physician's opinion on disability, even if controverted, can be rejected only with specific and legitimate reasons supported by substantial evidence in the record."); Magallanes, 881 F.2d at 751; Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987).*fn2
Moreover, the Ninth Circuit has held that a treating physician may render an opinion on the ultimate issue of disability. See Reddick, 157 F.3d at 725 ("In disability benefits cases such as this, physicians may render medical, clinical opinions, or they may render opinions on the ultimate issue of disability - the claimant's ability to perform work. . . . A treating physician's opinion on disability, even if controverted, can be rejected only with specific and legitimate reasons supported by substantial evidence in the record. . . . In sum, reasons for rejecting a treating doctor's credible opinion on disability are comparable to those required for rejecting a treating doctor's medical opinion."); Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988) (finding that ALJ had failed to give sufficiently specific reasons for rejecting the conclusion of plaintiff's treating orthopedist that plaintiff was "permanently disabled from his medical condition as well as his orthopaedic problems").
Here, the only reason provided by the ALJ for rejecting Dr. Payne's April 27, 2010 opinion was that it was "not supported by the claimant's records after September 2, 2009." (See AR 27.) However, that reason constitutes the same kind of non-specific boilerplate language rejected by the Ninth Circuit as insufficient in Embrey, 849 F.2d at 421-22. There, the Ninth Circuit observed, "To say that medical opinions are not supported by sufficient objective findings or are contrary to the preponderant conclusions mandated by the objective findings does not achieve the level of specificity our prior cases have required, even when the objective factors are listed seriatim." Id. at 421.
Moreover, as plaintiff points out, the additional evidence submitted by plaintiff to the Appeals Council included a letter from Dr. Payne dated June 23, 2010 in which Dr. Payne reported and expressed the opinions that plaintiff continued to be unable to work as of that time; that plaintiff's condition had not improved; that plaintiff's medication regimen was constantly changing to help control his symptoms; and that plaintiff would most likely deteriorate in any work setting. (See AR 490.) In its order denying review, the Appeals Council did not specifically address Dr. Payne's June 23, 2010 opinions; however, it did state that the additional records submitted by plaintiff showed adjustment to medication, indicated only partial compliance, and *fn3 stated that the medications were partially successful in controlling plaintiff's psychological impairments. (See AR 2.)
Since the Appeals Council stated in its order denying review that it had considered plaintiff's additional evidence, the additional evidence is part of the Administrative Record for purposes of the Court's analysis. See Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993) ("[A]lthough the Appeals Council 'declined to review' the decision of the ALJ, it reached this ruling after considering the case on the merits; examining the entire record, including the additional material; and concluding that the ALJ's decision was proper and that the additional material failed to 'provide a basis for changing the hearing decision.' For these reasons, we consider on appeal both the ALJ's decision and the additional material submitted to the Appeals Council."); see also Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) (the court may properly consider the additional materials because the Appeals Council addressed them in the context of denying appellant's request for review); Penny v. Sullivan, 2 F.3d 953, 957 n.7 (9th Cir. 1993) ("Although the ALJ did not have the advantage of this opinion letter, the Appeals Council considered this information and it became part of the record we are required to review as a whole."). The Commissioner's own regulations are in accord. See 20 C.F.R. §§ 404.970(b), 416.1470(b).
The Court is mindful that, in a recent panel decision, the Ninth Circuit held that a district court lacks jurisdiction to review the Appeals Council's decision denying plaintiff's request for review. See Taylor v. Comm'r of SSA, 659 F.3d 1228, 1231 (9th Cir. 2011). Further, in Taylor, the Ninth Circuit reaffirmed its holding in Gomez v. Chater, 74 F.3d 967, 972 (9th Cir. 1996), cert. denied, 519 U.S. 881 (1996) that the Appeals Council is not required to make any particular evidentiary finding when it rejects evidence obtained after an adverse administrative decision. See id. at 1232. However, in Taylor, the Ninth Circuit also reaffirmed its holding in Ramirez, a case decided prior to Gomez. See id. There, the Ninth Circuit had faulted the Appeals Council for failing to give any reason, let alone a "specific and legitimate" reason based on the substantial evidence of record, for rejecting the opinion of a treating physician contained in a report submitted to the Appeals Council in conjunction with the claimant's request for review, and had remanded to the district court for an immediate award of benefits. See Ramirez, 8 F.3d at 1451-55.
The Court notes that neither the Gomez panel nor the Taylor panel had the authority to override Ramirez, and that numerous other district court decisions in this Circuit support the proposition that where the Appeals Council considers a treating or examining physician's opinion submitted after issuance of the ALJ's decision and rejects that opinion or denies review after stating that it has considered that evidence, it must provide specific and legitimate reasons for doing so. See, e.g., Luckett v. Astrue, 2010 WL 3825703, at *9 (E.D. Cal. Sept. 28, 2010) (holding that, where the Appeals Council indicated it had considered plaintiff's claims of error and a newly offered medical opinion, the Appeals Council erred by not stating a specific reason for rejecting that opinion); Brent v. Astrue, 2010 WL 3521788, at *5-*6 (C.D. Cal. Sept. 7, 2010) (concluding that the Appeals Council erred by summarily rejecting the later-submitted opinion of an examining physician without providing specific reasons supporting such rejection); Jenkins v. Astrue, 2010 WL 368877, at *4 (C.D. Cal. Jan. 27, 2010) ("The bald conclusion that Dr. Peterson's statement did not provide a basis for changing the ALJ's decision is legally insufficient. The Appeals Council should have set forth specific and legitimate reasons supported by substantial evidence for rejecting Dr. Peterson's statement or remanded the case back to the ALJ to consider it."); Castillo v. Astrue, 2008 WL 4330253, at *4 (C.D. Cal. Sept. 18, 2008) (holding that the Appeals Council's failure to provide specific and legitimate reasons for rejecting a treating physician's opinion was "clear legal error" and that the result would be the same if the physician was only an examining physician); Siska v. Barnhart, 2002 WL 31750220, at *5 (N.D. Cal. Dec. 4, 2002) ("[T]he Appeals Council considered the opinions of Dr. Chua and Cook, but found those opinions did not provide a basis for changing the ALJ's decision.... In so ruling, the Appeals Council did not provide any specific and legitimate reasons for its conclusion, and thus erred."). Here, as in Ramirez, the Appeals Council failed to give any reason, let alone a "specific and legitimate" reason based on the substantial evidence of record, for rejecting Dr. Payne's June 23, 2010 opinions.
B. The ALJ failed to make a proper adverse credibility determination with respect to plaintiff's subjective pain and symptom testimony. Disputed Issue No. 2 is directed to the ALJ's adverse credibility determination with respect to plaintiff's subjective pain and symptom testimony.
As a preliminary matter, the Court notes that it is unclear from the Commissioner's portion of the Joint Stipulation whether the Commissioner is applying the correct standard of review to the ALJ's adverse credibility determination. (See Jt Stip at 20.) The law is well established in the Ninth Circuit that, where the claimant has produced objective medical evidence of an impairment or impairments that could reasonably be expected to produce some degree of pain and/or other symptoms, and the record is devoid of any affirmative evidence of malingering, the ALJ may reject the claimant's testimony regarding the severity of the claimant's pain and/or other symptoms only if the ALJ makes specific findings stating clear and convincing reasons for doing so. See, e.g., Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991); Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986).
Here, the ALJ expressly found as follows: "After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms." (See AR 26.) Since the ALJ did not find that the record here contained any affirmative evidence of malingering and the Commissioner is not contending that the record contains affirmative evidence of malingering, the question becomes whether the ALJ ...