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Charles Sturdevant Iii v. Michael J. Astrue

October 17, 2012

CHARLES STURDEVANT III,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
DEFENDANT. ))



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

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Plaintiff appeals a decision by Defendant Social Security Administration ("the Agency"), denying his application for Supplemental Security Income ("SSI"). He claims that the Administrative Law Judge ("ALJ") erred when he: (1) rejected a treating psychiatrist's opinion; and (2) found that Plaintiff was not credible. For the reasons discussed below, the Agency's decision is reversed and the case is remanded for further consideration.

II. SUMMARY OF PROCEEDINGS

In April 2007, Plaintiff applied for SSI, alleging that he was disabled due to depression with psychosis, migraines, and right shoulder pain. (Administrative Record ("AR") 83, 121-23, 136.) His application was denied initially and on reconsideration. (AR 79, 80, 83-93.) He then requested and was granted a hearing before an ALJ. (AR 95, 97-98.) On November 18, 2009, he appeared with counsel for the hearing. (AR 46-78.) On December 17, 2009, the ALJ issued a decision denying benefits. (AR 7-18.) Plaintiff appealed to the Appeals Council, which denied review. (AR 1-3, 5.) This action followed.

III. ANALYSIS

A. The Treating Psychiatrist's Opinion Plaintiff contends that the ALJ erred when he rejected the opinion of treating psychiatrist Marc Stolar, who concluded in, essence, that Plaintiff's severe mental illness prevented him from working. (AR 513.) The ALJ gave very little weight to this opinion, finding instead that Plaintiff would be able to perform work involving simple tasks that did not involve contact with the public as determined by the reviewing psychiatrists. (AR 13-15.) For the following reasons, the Court concludes that further consideration of this issue is warranted.

"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); see also Morgan v. Comm'r, 169 F.3d 595, 600 (9th Cir. 1999) (explaining that a treating physician's opinion "is given deference because 'he is employed to cure and has a greater opportunity to know and observe the patient as an individual'" (quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987))). For this reason, generally speaking, a treating physician's opinion that is well-supported and not inconsistent with other substantial evidence in the record will be given controlling weight. Orn, 495 F.3d at 631.

That being said, however, an ALJ is not required to simply accept a treating doctor's opinion. Where, as here, the opinion is contradicted by another doctor's opinion, the ALJ is empowered to reject it for specific and legitimate reasons that are supported by substantial evidence in the record. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)); Morgan, 169 F.3d at 600.*fn1

On September 15, 2008, Dr. Stolar completed a pre-printed, "Narrative Report" form, circling various options to indicate Plaintiff's condition. (AR 511.) Dr. Stolar noted that Plaintiff's memory and judgment were intact and that he would be able to maintain a sustained level of concentration and manage funds. (AR 511.) Because he had seen Plaintiff only once at the time of the report, however, he indicated that it was "unknown" whether Plaintiff would be able to sustain repetitive tasks for an extended period, adapt to new or stressful situations, interact appropriately with co-workers and supervisors, and complete a 40-hour work week without decompensating. (AR 511.) Ultimately, he diagnosed Plaintiff with schizoaffective disorder. (AR 511.)

In an August 7, 2009, hand-written, two-paragraph, "To Whom It May Concern" letter, Dr. Stolar wrote that he had been treating Plaintiff for one year. (AR 513.) He again diagnosed him with schizoaffective disorder, but this time bipolar type. (AR 513.) Dr. Stolar also opined that, due to Plaintiff's mental illness, he would not be able to maintain a sustained level of concentration, perform repetitive tasks for an extended period of time, interact appropriately with co-workers and supervisors, or work a 40-hour week without decompensating. (AR 513.)

The ALJ rejected Dr. Stolar's opinion because it was not supported by any objective findings and did not include even the most basic information, such as how often he had seen Plaintiff, Plaintiff's response to medication, and whether other therapy modalities had been tried. (AR 15.) The ALJ also noted that Dr. Stolar had not mentioned any objective signs or symptoms to support his opinion. (AR 15.) Moreover, although Dr. Stolar stated in August 2009 that he had been treating Plaintiff for a year, he did not provide any treatment notes documenting this treatment. (AR 15.)

These are legitimate reasons for rejecting Dr. Stolar's opinion. See Thomas, 278 F.3d at 957 (holding ALJ not required to accept treating physician's opinion that is brief, conclusory, and inadequately supported by clinical findings); Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (holding ALJ may reject "check-off reports that [do] not contain any explanation of the bases of their conclusions."). And there is support in the record for the ALJ's findings. The problem with these findings, however, is that the record is woefully incomplete regarding Dr. Stolar's work. The only records from Dr. Stolar are his 2008 check-the-box form and his 2009 letter. (AR 511, 513.) It is impossible to assess the relevance of Dr. Stolar's opinion on this record and, as explained below, both the ALJ and Plaintiff should have done more to obtain the records to do so.

The ALJ had a special duty to "fully and fairly" develop the record. See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). This included obtaining Dr. Stolar's medical records that presumably support his opinion that Plaintiff was disabled. Id. ("If the ALJ thought he needed to know the basis of [the treating doctor's] opinions in order to evaluate them, he had a duty to conduct an ...


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