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James L. Perkins v. Michael J. Astrue

October 5, 2012

JAMES L. PERKINS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Robert N. Block United States Magistrate Judge

O

ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS

Plaintiff filed a Complaint herein on January 24, 2012, seeking review of the Commissioner's denial of his applications for disability insurance and Supplemental Security Income benefits. In accordance with the Court's Case Management Order, the parties filed a Joint Stipulation on September 21, 2012. Thus, this matter now is ready for decision.*fn1

DISPUTED ISSUES

As reflected in the Joint Stipulation, the disputed issues that plaintiff is raising as the grounds for reversal and remand are as follows:

1. Whether the Administrative Law Judge ("ALJ") properly considered the opinions of the examining physician and the state agency physician.

2. Whether the ALJ properly considered plaintiff's testimony.

DISCUSSION

A. Reversal is warranted based on the ALJ's failure to properly consider the examining physician's opinion.

The first part of Disputed Issue No. 1 is directed to the ALJ's consideration of the August 7, 2009 opinion of the examining psychiatrist, Dr. Ernest Bagner, that plaintiff had moderate to marked limitations in the ability to perform work-related mental functions. (See Jt Stip at 8, 10; AR 257.) The sole reason given by the ALJ for not crediting this opinion was that Dr. Bagner had reviewed plaintiff's medical records only up to March 2009, and therefore had not reviewed subsequent records from November and December 2009 that indicated general improvement in plaintiff's condition. (See AR 25; see also AR 254-55.)

To reject the uncontradicted opinion of an examining physician, an ALJ must provide "clear and convincing" reasons. Even if contradicted by another doctor, the opinion of an examining doctor can only be rejected for "specific and legitimate" reasons that are supported by substantial evidence in the record. See Regennitter v. Commissioner, 166 F.3d 1294,1298-99 (9th Cir. 1999); Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995); see also Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).

Here, Dr. Bagner's opinion was contradicted by the opinion of the State Agency review physician, Dr. M. Salib, who opined that plaintiff had no more than moderate limitations in the ability to perform work-related mental functions. (See AR 263-64, 274.) However, the Court finds that the fact that records from November and December 2009 indicated general improvement in plaintiff's condition does not constitute a "specific and legitimate" reason for rejecting Dr. Bagner's opinions when there also was evidence in the record that plaintiff's mental symptoms had not permanently improved, but rather had subsequently relapsed and necessitated increases in his medication dosages. (See AR 309-12.)

B. Reversal also is warranted based on the ALJ's failure to properly consider the State Agency physician's opinion.

The second part of Disputed Issue No. 1 is directed to the ALJ's consideration of Dr. Salib's opinion that plaintiff had "the capacity to perform simple work-related tasks for as long as contact with co-workers and the public is reduced in a low ...


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