Nguyen v. Chater

• Decision Date: 09 August 1996
• Docket Number: No. 95-55346,DEFENDANT-APPELLEE,PLAINTIFF-APPELLANT,95-55346
• Citation: 100 F.3d 1462
• Parties: KIM VAN NGUYEN,, v. SHIRLEY S. CHATER, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, *
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1462

100 F.3d 1462

KIM VAN NGUYEN, PLAINTIFF-APPELLANT, v. SHIRLEY S. CHATER, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,^* DEFENDANT-APPELLEE.

No. 95-55346

United States Court of Appeals,

NINTH CIRCUIT

Argued and Submitted Aug. 9, 1996

Decided: November 20, 1996.

Martin Taller, Anaheim, California, for the plaintiff-appellant.

Donna W. Anderson, Assistant Regional Counsel, United States Social Security Administration, San Francisco, California, for the defendant-appellee.

Appeal from the United States District Court for the Central District of California. D.C. No. CV-90-5473-JG. Rupert J. Groh, Magistrate Judge, Presiding.

Before: Stephen Reinhardt, Edward Leavy, Circuit Judges and Robert E. Coyle,^** District Judge.

REINHARDT, Circuit Judge:

Claimant, Kim Van Nguyen, appeals from a denial of Social Security Disability benefits and Social Security Income benefits. While he has a history of numerous medical problems, including the effects of having been shot in both legs by the Communists in 1970 when he was a soldier in the South Vietnamese army,¹ the two principal issues in this case concern the ALJ's consideration of claimant's affective disorder and the effects of his chronic bronchial asthma. Specifically, claimant contends that the ALJ improperly credited a non-treating medical advisor over an examining psychologist because the ALJ failed to set forth specific legitimate reasons for doing so and the ALJ erred by not considering the lay testimony of claimant and his wife in evaluating claimant's residual functional capacity (RFC) or giving specific reasons for rejecting that lay testimony. We agree with claimant and therefore vacate and remand.

I.

Claimant contends that the ALJ erred by not crediting the Conclusion of the examining psychologist, Dr. Brown, who determined that claimant met listing 12.04 for affective disorders. 20 CFR Pt. 404, Subpt. P., App 1, 12.04. The ALJ did not explicitly reject the opinion of Dr. Brown; he did, however, rely on the opinion of Dr. Walter, the non-examining psychologist called by the Commissioner. In Dr. Walter's opinion, claimant did not meet the listing 12.04. We hold that the ALJ erred because he neither explicitly rejected the opinion of Dr. Brown, nor set forth specific, legitimate reasons for crediting Dr. Walter over Dr. Brown. E.g., Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); see also Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1996)(as amended)("The opinion of an examining doctor, even if contradicted by the opinion of another [nonexaming] doctor, can only be rejected for specific and legitimate reasons that are supported by the record.").

While the ALJ made a number of comments in his report that might appear to be a basis for questioning Dr. Brown's Conclusions, even if we were to read these observations in that manner, they would not constitute "specific, legitimate reasons" for rejecting Dr. Brown's opinion or crediting Dr. Walter's opinion over that of Dr. Brown. For example, the ALJ noted that the opinions in Dr. Brown's supplemental report "were not derived from a test or examination environment, or from the previous findings of various medical reports of record." Contrary to the ALJ's statement, Dr. Brown stated that his supplemental report was based, in part, on a review of his 1991 assessment of claimant, which was based on an examination of claimant and the administration of a battery of tests. In addition, since the only other medical opinion available on mental impairment, that of Dr. Walter, is based solely on a review of medical records, primarily those of Dr. Brown, and very cursory questioning of claimant at the hearing, the ALJ's stated reason would not constitute a legitimate basis for favoring Dr. Walter's opinion over Dr. Brown's.

The ALJ also stated that Dr. Walter had pointed out that "the evidence was devoid of any findings or complaints relative to a mental disorder of the claimant during the period of May 1988 until November 18, 1991, when the claimant was examined by a psychologist, R. Wayne Brown, Ph.D.,² at the request of the claimant's attorney." This is not a legitimate basis on which to discount Dr. Brown's opinion that claimant has a severe depressive disorder. First, the fact that the examination was conducted at the request of an attorney is relevant where the opinion itself provides grounds for suspicion as to its legitimacy. We have held the source of a referral to be relevant where there is no objective medical basis for the opinion, Burkhart v. Bowen, 856 F.2d 1335, 1339 (9th Cir. 1988), and where there is evidence of "actual improprieties" on the part of the doctor whose report the ALJ chooses to reject. Saelee v. Chater, 94 F.3d 520, 523 (9th Cir. 1996)(per curiam). In Saelee, the ALJ noted among other things that there was no objective medical basis for the doctor's opinion and that the report was inconsistent with the doctor's own treatment notes. Id. Saelee relied on Burkhart for the proposition that under certain circumstances the ALJ may consider the purpose for which a doctor's report was obtained. In Burkhart, we held that consideration of the fact that a doctor's report was solicited by claimant's counsel was "a permissible credibility determination given the evidence before the ALJ." Burkhart, 856 F.2d at 1339 (emphasis added). In that case, the evidence before the ALJ was that the report of the doctor that the ALJ rejected consisted of no more than a wholly conclusory opinion unsupported by any objective medical findings, personal observations or test reports, and was directly contradicted by the Conclusions of a number of other treating physicians whose opinions were based on objective medical findings. Id.

In this case, none of the factors are present that would allow the ALJ to consider the source of the referral of Dr. Brown's patient in assessing the doctor's credibility. Dr. Brown's thorough report is based on an examination, a battery of tests, and review of the claimant's hearing testimony. His is not a mere "unsupported opinion." Id. Nor is there any evidence of any "actual improprieties," Lester, 81 F.3d at 832, on Dr. Brown's part, such as an inconsistency between his treating notes and the report he submitted to the ALJ or evidence that he was deliberately attempting to mislead the ALJ for the purpose of helping claimant obtain benefits. See Saelee, 94 F.3d at 523. To the contrary, Dr. Brown repeatedly set forth both the evidence that supported his Conclusions and that which undermined them. That does not mean that Dr. Brown was correct or that his report must prevail, but it does mean that Dr. Brown's credibility is not subject to attack on the basis of the source of his patient's referral.

Second, it is common knowledge that depression is one of the most underreported illnesses in the country because those afflicted often do not recognize that their condition reflects a potentially serious mental illness. See, e.g., Warren E. Leavy, Hidden Depression, Chi. Trib., Feb. 1, 1996 at 7 (noting that nearly 17 million adult Americans suffer from depression in a given year and that two-thirds of them do not get treatment). Thus, the fact that claimant may be one of millions of people who did not seek treatment for a mental disorder until late in the day is not a substantial basis on which to conclude that Dr. Brown's assessment of claimant's condition is inaccurate. As the Sixth Circuit has noted in finding invalid an ALJ's reasons for rejecting claimant's assertions about his depression, 'appellant may have failed to seek psychiatric treatment for his mental condition, but it is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.' Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir. 1989).

The government contends that the ALJ legitimately discounted Dr. Brown's report because it is inconsistent with claimant's own testimony. We disagree. Where the purported existence of an inconsistency is squarely contradicted by the record, it may not serve as the basis for the rejection of an examining physician's Conclusions. The ALJ stated that Dr. Brown

indicated that claimant had testified that he never travelled outside or played with his children and that he sits in a chair most of the day. However, the record contains facts to the contrary to the claimant's testimony as he has indicated during the previous examinations that he was able to watch television for several hours a day, play with his children, and attend church on a weekly basis. He drove an automobile.

An examination of Dr. Brown's reports demonstrates that only by quoting an isolated sentence and mischaracterizing his statements can one create any apparent inconsistency between the report and claimant's testimony. However, even that appearance is dissipated by a plain reading of the record. Dr. Brown stated:

Testimony that argues for his having a loss of interest in his life is that he sits in a chair most of the day and does not go outside, or go outdoors and play with his children. . . . Mr. Nguyen related that he had no interest or hobbies or other activities outside of his home, and that his free time is spent caring for his children, watching T.V. and attending church on a regular basis. These activities that show some degree of interest as related by his wife's testimony are that they go to church once a week by means of Mr. Nguyen driving; he sometimes drives her to a shopping destination while he remains in the automobile, and by his testimony he sits around the house and plays with his children.

In this examiner's opinion, this represents a marked loss of interest for a male his age.

It is clear that Dr. Brown did not misstate claimant's testimony or rely on testimony by claimant that contradicted his other testimony. Contrary to the ALJ's statement, Dr. Brown acknowledged that claimant played with his children; he...