United States District Court, C.D. California
MEMORANDUM AND OPINION
ALKA SAGAR, Magistrate Judge.
Plaintiff filed a complaint on March 5, 2013, seeking review of the Commissioner's denial of benefits. On August 22, 2013, the matter was transferred and referred to the current Magistrate Judge. The parties thereafter consented to proceed before a United States Magistrate Judge. Defendant filed an Answer to the Complaint on September 19, 2013. On November 25, 2013, the parties filed a Joint Stipulation ("Joint Stip.") setting forth their respective positions on Plaintiff's claim. The Court has taken this matter under submission without oral argument. See L.R. 7-15; "Order, " filed March 19, 2013.
BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
Plaintiff, a former deli cutter-slicer, asserts disability since August 15, 2008, based on alleged mental and learning impairments. (Administrative Record ("A.R.") 26). The Administrative Law Judge ("ALJ") examined the records and heard testimony from Plaintiff, Plaintiff's mother, a psychology expert and a vocational expert (A.R. 30-33).The ALJ made the following findings: (1) Plaintiff has a severe medically determinable impairment, specifically, borderline intellectual functioning, a learning disorder and a history of attention deficit hyperactivity disorder; (2) Plaintiff's impairments do not meet or equal a listed impairment, (3) Plaintiff retains the capacity to perform "simple repetitive tasks, " (4) Plaintiff lacks the residual functional capacity to perform his past relevant work, and (5) Plaintiff is able to perform work that exists in signif icant numbers in the national economy. (A.R. 29-35). The Appeals Council considered additional information but denied review, rendering the ALJ's decision the final decision of the Administration. (A.R. 5). Plaintiff contends that the Commissioner erred by reaching this decision without properly considering the evidence of his treating physician, Dr. Matthew Davis. (See Joint Stip. at 4).
STANDARD OF REVIEW
Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used proper legal standards. See Carmickle v. Commissioner , 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue , 499 F.3d 1071, 1074 (9th Cir. 2007). "Substantial evidence is more than a scintilla, but less than a preponderance." Reddick v. Chater , 157 F.3d 715, 720 (9th Cir. 1998) (citing Jamerson v. Chater , 112 F.3d 1064, 1066 (9th Cir. 1997). It is "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Id . (citing Jamerson , 112 F.3d at 1066; Smolen v. Chater , 80 F.3d 1273, 1279 (9th Cir. 1996)). To determine whether substantial evidence supports a finding, "a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland v. Massanari , 257 F.3d 1033, 1035 (9th Cir. 1997) (quoting Penny v. Sullivan , 2 F.3d 953, 956 (9th Cir. 1993)). "If the evidence can reasonably support either affirming or reversing the [Commissioner's] conclusion, [a] court may not substitute its judgment for that of the [Commissioner]." Reddick , 157 F.3d at 720-21 (citing Flaten v. Sec'y of Health & Human Servs. , 44 F.3d 1453, 1457 (9th Cir. 1995).
Where, as here, the Appeals Council considered additional material but denied review, the additional material becomes part of the Administrative Record for purposes of the Court's analysis. See Brewes v. Commissioner , 682 F.3d 1157, 1163 (9th Cir. 2012) ("[W]hen the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner's final decision for substantial evidence") (expressly adopting Ramirez v. Shalala , 8 F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner , 659 F.3d 1228, 1231 (9th Cir. 2011) (courts may consider evidence presented for the first time to the Appeals Council "to determine whether, in light of the record as a whole, the ALJ's decision was supported by substantial evidence and was free of legal error"); Penny v. Sullivan , 2 F.3d 953, 957 n.7 (9th Cir. 1993) ("the Appeals Council considered this information and it became part of the record we are required to review as a whole"); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b).
I. Applicable Law
Three types of physicians may offer opinions in Social Security cases: "(1) those who treat[ed] the claimant (treating physicians); (2) those who examine[d] but d[id] not treat the claimant (examining physicians); and (3) those who neither examine[d] nor treat[ed] the claimant (non-examining physicians)." Lester v. Chater , 81 F.3d 821, 830 (9th Cir. 1995). A treating physician's opinion is generally entitled to more weight than the opinion of a doctor who examined but did not treat the claimant, and an examining physician's opinion is generally entitled to more weight than that of a nonexamining physician. Id .; see also Embrey v. Bowen , 849 F.2d 418, 422 (9th Cir. 1988) (treating physician's conclusions "must be given substantial weight").
The opinions of treating physicians are generally afforded more weight than the opinions of nontreating physicians because treating physicians are employed to cure and have a greater opportunity to know and observe the claimant. Smolen , 80 F.3d at 1285. Thus, if a treating physician's opinion is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record, it should be given controlling weight. 20 C.F.R. § 404.1527(c)(2). However, if a treating physician's opinion is not given controlling weight, its weight is determined by length of the treatment relationship, frequency of examination, nature and extent of the treatment relationship, amount of evidence supporting the opinion, consistency with the record as a whole, the doctor's area of specialization, and other factors. Id . § 404.1527(c)(2)-(6).
When a treating physician's opinion conflicts with another doctor's, the ALJ must provide "specific and legitimate reasons" for discounting it. Carmickle , 533 F.3d at 1164. The ALJ need not accept any medical opinion that conflicts with the physician's own treatment notes, the record as a whole or an opinion that is brief and conclusory. See Bayliss v. Barnhart , 427 F.3d 1211, 1216 (9th Cir. 2005) (holding that discrepancy between physician's notes and his assessment of limitations was "clear and convincing" reason for rejecting opinion); Connett v. Barnhart , 340 F.3d 871, 874-75 (9th Cir. 2003) (affirming ALJ's rejection of physician's Residual Functional Capacity questionnaire because it was "not supported by his own notes" and "had multiple inconsistencies with all other evaluations" (alteration omitted)).
However, an ALJ also has a "special duty to fully and fairly develop the record and to assure that the claimant's interests are considered." Brown v. Heckler , 713 F.2d 441, 443 (9th Cir. 1983) (per curiam); see also Sims v. Apfel , 530 U.S. 103, 110-11 (2000) ("Social Security proceedings are inquisitorial rather than adversarial. It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits..."). As effective at the time the ALJ rendered his most recent decision, section 404.1512(e) of 20 C.F.R. provided that the Administration "will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, the report does not contain all of the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques." See 20 C.F.R. § 404.1512(e) (eff. through Mar. 25, 2012); see also Smolen , 80 F.3d at 1288 ("If the ALJ thought he needed to know the basis of ...