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Lewis Kaplanski v. Michael J. Astrue

October 25, 2012


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



Plaintiff appeals a decision by Defendant Social Security Administration ("the Agency"), denying his application for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB"). He claims that the Administrative Law Judge ("ALJ") erred when she rejected the treating psychiatrist's opinion that he was disabled and accepted the reviewing psychiatrist's opinion that he was not. For the reasons discussed below, the decision is reversed and the case is remanded for further consideration.


In March 2009, Plaintiff applied for SSI and DIB, alleging that he was disabled as of May 2005, due to bipolar disorder and depression. (Administrative Record ("AR") 131-35, 148.) His applications were denied initially and on reconsideration. (AR 77, 78, 79, 80, 83-99.) He then requested and was granted a hearing before an ALJ. (AR 42-43.) On June 14, 2010, he appeared with counsel for the hearing. (AR 47-73.) On June 30, 2010, the ALJ issued a decision denying benefits. (AR 19-28.) Plaintiff appealed to the Appeals Council, which denied review. (AR 1-6.) This action followed.


Plaintiff contends that the ALJ erred when he rejected the opinion of the treating psychiatrist that Plaintiff's bipolar disorder prevented him from working and accepted, instead, the opinion of the reviewing psychiatrist that it did not. (AR 26-27.) For the following reasons, the Court concludes that the ALJ erred.

"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 that 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.

Psychiatrist Vy Doan treated Plaintiff from July 2005 through September 2010. (AR 229-328, 359-62.) Throughout this period, Dr. Doan consistently diagnosed him with bipolar disorder and treated him with psychotropic medication. (AR 229, 278, 288, 328, 360-61.) Dr. Doan prepared three evaluations in connection with Plaintiff's application for benefits. In each, he opined that Plaintiff's condition would interfere with his ability to function in the workplace. (AR 326-28, 356-57, 359-62.) For example, in September 2010, Dr. Doan concluded that Plaintiff would be required to miss more than three days of work each month and that he would often experience difficulty concentrating at work and completing tasks. (AR 362.)

The ALJ rejected Dr. Doan's opinion because it was on a check-the-box form. (AR 26.) Though the Court would agree that, generally speaking, this is a legitimate reason for rejecting a doctor's opinion, see, e.g., Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (approving of ALJ's discounting of doctor's opinion because, among other things, it was contained in a check-the-box form and did not include an explanation for the opinion), the ALJ's reliance on that reason in this case was a mistake. In the first place, only one of Dr. Doan's three opinions was on a check-the-box form. (AR 356-57.) The other two were presented on forms that required Dr. Doan to explain the reasons for his views. (AR 326-28, 359-62.) Second, even assuming that Dr. Doan's opinions were contained on check-the-box forms, that would not be a sufficient reason for discounting them in this case because the reviewing psychiatrist's opinion--that the ALJ relied on in lieu of Dr. Doan's opinion-- was also contained on a check-the-box form. (AR 329-44.) Fundamental notions of due process require that, if an ALJ is going to reject the treating doctor's opinion because it is on a check-the-box form, she has to apply this same rule to the reviewing doctor's opinion; she cannot accept a check-the-box opinion that supports her decision and reject the ones that do not.*fn1

The ALJ also rejected Dr. Doan's opinion because it was not well supported. (AR 26.) In the ALJ's view, Dr. Doan's records did not reveal "the sort of clinical abnormalities one would expect if the claimant were actually as limited as assessed . . . ." (AR 26.) Plaintiff argues that the ALJ was applying her own medical expertise in reaching this conclusion. (Joint Stip. at 10-11.) The Agency disagrees. It argues that the ALJ was legitimately questioning Dr. Doan's opinion because it was not supported by his treatment notes, citing Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003). Again, the Court sides with Plaintiff.

The Court is unclear as to what clinical abnormalities were missing from Dr. Doan's records and what the basis was for the ALJ's finding that they were missing. The record reveals that, beginning in July 2005, Dr. Doan treated Plaintiff for bipolar disorder, seeing him on average every two or three months. (AR 229-328.) During this period, Dr. Doan recorded various observations about Plaintiff's condition and his treatment. At times, Dr. Doan noted that Plaintiff showed improvement; at times he noted that Plaintiff did not. At the end of that five-year period, Dr. Doan repeated his initial diagnosis of bipolar disorder and offered his opinion as to how this disorder would impact Plaintiff's ability to function, particularly in the workplace. (AR 359-62.)

The ALJ--without citation to any authority or any medical testimony--concluded that Dr. Doan's notations were not consistent with what she would expect to see if Plaintiff truly suffered from bipolar disorder. (AR 26.) This is not a legitimate basis for questioning Dr. Doan's opinion. Though the Court would agree that there are some medical conditions, for example, a broken bone, that fall within the realm of common sense and shared experience among lay people, like judges, who could fairly predict what should be found in a medical record, bipolar disorder does not appear to the Court to be one of those conditions. The Court cannot say with any certainty what one should ...

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