Kim Van Nguyen v. Shirley S. Chater, Commissioner of the Social Security Administration

Citations: 100 F.3d 1462; 96 Daily Journal DAR 13953; 96 Cal. Daily Op. Serv. 8388; 1996 U.S. App. LEXIS 29989; 1996 WL 668460Docket: 95-55346

Court: Court of Appeals for the Ninth Circuit; November 20, 1996; Federal Appellate Court

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Kim Van Nguyen appeals the denial of Social Security Disability and Income benefits, arguing that the Administrative Law Judge (ALJ) improperly favored a non-treating medical advisor's opinion over that of an examining psychologist regarding his affective disorder and chronic bronchial asthma. The ALJ relied on Dr. Walter, a non-examining psychologist, who opined that Nguyen did not meet the criteria for listing 12.04 for affective disorders, while Dr. Brown, the examining psychologist, concluded that he did. The court found the ALJ erred by not explicitly rejecting Dr. Brown's opinion or providing specific, legitimate reasons for crediting Dr. Walter's opinion instead. Although the ALJ made comments that might challenge Dr. Brown's conclusions, these did not constitute sufficient reasons to disregard Dr. Brown's findings. The court emphasized that an examining doctor's opinion can only be rejected for specific, legitimate reasons supported by the record, and since Dr. Walter's assessment was based primarily on medical records and limited interaction with Nguyen, the ALJ's rationale for favoring Dr. Walter's opinion was inadequate. Consequently, the court vacated the decision and remanded the case for further proceedings.

Dr. Walter highlighted the absence of evidence indicating a mental disorder in the claimant from May 1988 to November 1991, when Dr. R. Wayne Brown examined the claimant. The ALJ's reasoning to discount Dr. Brown's opinion on the claimant's severe depressive disorder is flawed for two primary reasons. First, while the examination was requested by an attorney, this alone does not undermine the legitimacy of Dr. Brown's opinion, especially since there are no objective grounds for suspicion regarding his findings. In past cases, such as Burkhart v. Bowen and Saelee v. Chater, the source of a referral could be considered if the doctor's opinion lacked medical support or was inconsistent with their own notes. However, in this instance, Dr. Brown's comprehensive report is based on a full examination, testing, and review of testimony, making it more than just an unsupported opinion. There is no evidence of impropriety on Dr. Brown's part, nor any inconsistencies in his treatment notes that would warrant questioning his credibility. 

Second, the underreporting of depression is well-documented, as many individuals do not recognize their condition as a serious mental illness. The claimant's late pursuit of treatment does not undermine Dr. Brown's assessment of his condition. Citing Blankenship v. Bowen, it is inappropriate to criticize individuals with mental impairments for not seeking timely rehabilitation, as this reflects a common issue among those suffering from such conditions.

The government argues that the Administrative Law Judge (ALJ) appropriately dismissed Dr. Brown's report due to perceived inconsistencies with the claimant's testimony. However, the claim of inconsistency is contradicted by the record. The ALJ noted that Dr. Brown reported the claimant claimed to never travel outside or engage with his children, but the record shows otherwise; the claimant has previously stated he watches television for hours, plays with his children, and attends church weekly. Furthermore, Dr. Brown's report, when examined in full context, does not support the ALJ's claims of inconsistency. Dr. Brown mentioned the claimant's limited activities, which include attending church and occasionally driving his wife, indicating that the claimant does leave the house, albeit infrequently. The supposed inconsistency between the claimant sitting in a chair and watching television is also unfounded, as watching television typically occurs while seated. The ALJ's conclusion lacks factual support, and to discount a physician's opinion in favor of a non-examining medical advisor, the ALJ must provide specific, legitimate reasons backed by substantial evidence, which was not done in this case.

The ALJ concluded that the claimant's mild asthma, in conjunction with his leg injuries, did not prevent him from performing sedentary work as a packager/assembler in a clean room. This determination was based on medical evidence indicating that the claimant's asthma was manageable with medication and that avoiding exposure to irritants would further mitigate symptoms. The ALJ also referenced a vocational expert's testimony affirming the availability of clean room work for the claimant.

However, the claimant argued that the ALJ failed to adequately consider his and his wife's testimony regarding the severity of his asthma, specifically his chronic coughing and wheezing. Although the ALJ included asthma in the hypothetical posed to the vocational expert, he did not account for the significant coughing issue raised during the attorney's questioning. The vocational expert acknowledged that excessive coughing might disqualify the claimant from clean room jobs but did not define "excessive."

The ALJ omitted the claimant's and his wife’s descriptions of his serious coughing in the hypothetical and did not provide reasons for discounting their testimony. The legal precedent indicates that lay testimony regarding a claimant's symptoms is competent evidence and must be considered unless expressly disregarded with justification. The government's argument that the ALJ could ignore the lay testimony due to conflicts with medical evidence was deemed inappropriate, as lay testimony on symptoms is valid. Ultimately, the ALJ's failure to justify the discounting of coughing testimony, which aligned with medical assessments of the claimant's chronic asthma, undermined the conclusion that the claimant could perform his previous work, indicating a lack of substantial evidence for this finding.

On remand, the ALJ is required to issue a new decision aligned with the applicable law outlined in the opinion, with the option to reopen the hearing for additional evidence if deemed appropriate. The decision is reversed and remanded for further proceedings. Circuit Judge Leavy concurs in part but dissents regarding the majority's analysis of the ALJ's handling of medical opinions. The majority asserts that the ALJ erred by not explicitly rejecting Dr. Brown's opinion and failing to provide legitimate reasons for favoring Dr. Walter's opinion. Leavy argues that the majority’s interpretation of Andrews v. Shalala and Lester v. Chater is incorrect and that the ALJ's decision should be supported by substantial evidence. Specifically, the ALJ found no mental impairment evidence before 1991 and concluded that the claimant was not disabled under the Social Security Act. The district court noted a critical lack of evidence demonstrating the claimant had a listed impairment prior to the expiration of his insured status on December 31, 1989. The claimant did not mention any mental impairment in his initial benefit applications in 1988 and only sought a mental evaluation nearly two years post-expiration.

Dr. Brown's report notes that the plaintiff's mental health had been declining for two to three years before his 1991 examination, but this assessment primarily reflects the plaintiff's own views. The report suggests that the plaintiff's condition was likely better in 1989, when his insured status lapsed, as Dr. Brown indicated the plaintiff had been "temporarily partially disabled on a psychological basis since the end of 1989," implying that the impairment was not sufficiently serious to be classified as "disabling" before the insured status expired. Additionally, the plaintiff's lack of treatment for any disabling mental condition further supports the conclusion that no such impairment existed prior to December 31, 1989. The Administrative Law Judge (ALJ) found substantial evidence in the administrative record to affirm that the claimant did not have a mental impairment before this date. The document notes that the Social Security Administration's oversight was transferred to the Commissioner effective March 31, 1995, with Shirley S. Chater substituting for Donna E. Shalala as the defendant in the case. Judge Robert E. Coyle presided over the case by designation.