NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT SEP 06 2011

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

MATT A. FERRANDO, No. 10-15771

Plaintiff - Appellant, D.C. No. 2:08-cv-02470 FCD

CMK

v.

COMMISSIONER OF SOCIAL MEMORANDUM*

SECURITY ADMINISTRATION,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of California Frank C. Damrell, Senior District Judge, Presiding

Agrued and Submitted July 22, 2011 San Francisco, California

Before: TASHIMA and RAWLINSON, Circuit Judges, and HATTER, Senior District Judge.**

Matt Ferrando (“Ferrando”) appeals the district court’s grant of summary

judgment in favor of the Commissioner of Social Security (the “Commissioner”)

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Terry J. Hatter, Senior United States District Judge for the Central District of California, sitting by designation. upholding the denial of disability benefits under Titles II and XVI of the Social

Security Act.

We review de novo a district court’s judgment upholding the denial of social

security benefits, but will set aside a denial of benefits only if it is not supported by

substantial evidence or is based on legal error. Berry v. Astrue, 622 F.3d 1228,

1231 (9th Cir. 2010). In determining whether to remand a case to the

Commissioner in light of new evidence, we review de novo whether the new

evidence is material and for abuse of discretion whether the claimant had good

cause for the failure to incorporate the evidence into the record of a prior

proceeding. Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001).

1. Ferrando’s argument that the mere fact of a subsequent decision awarding

him benefits requires remand for reconsideration in light of new evidence is

without merit. As in Bruton v. Massanari, 268 F.3d 824 (9th Cir. 2001), the

subsequent application in this case involved “different medical evidence[ and] a

different time period.” Id. at 827. Thus, the “initial denial and subsequent award

[are] easily reconcilable on the record before the court.” Luna v. Astrue, 623 F.3d

1032, 1035 (9th Cir. 2010).

2. Ferrando did not waive his arguments as to the merits of ALJ Ramsey’s

decision because he “gave the district court a clear opportunity to review the

2 validity of its order.” Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th

Cir. 1992). “As a general rule, more weight should be given to the opinion of a

treating source than to the opinion of doctors who do not treat the claimant.”

Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Thus, “where the treating

doctor's opinion is not contradicted by another doctor, it may be rejected only for

‘clear and convincing’ reasons.” Id. The record demonstrates that the opinions of

the examining psychologist relied on by the ALJ and the treating psychiatrist

rejected by the ALJ do not conflict because Ferrando’s medical records indicate

that his mental impairments worsened between the examining psychologist’s

evaluation in April 2005 and the treating psychiatrist’s evaluation in February

2007.1

Here, ALJ Ramsey failed to provide clear and convincing reasons for

rejecting the evaluation of Ferrando’s treating psychiatrist. First, Ferrando’s

failure to seek treatment for his mental illness before Decmber 2006 is not a clear

and convincing reason to reject his psychiatrist’s opinion, especially where that

failure to seek treatment is explained, at least in part, by his degenerating

1 Indeed, Ferrando’s mental impairments worsened to the point where the Commissioner determined that he was disabled by them, at least as of July 27, 2007, the date of his subsequent application for benefits, and just over a month after the date of the decision before us on review.

3 condition. See Regennitter v. Comm’r Soc. Sec. Admin., 166 F.3d 1294, 1299-

1300 (9th Cir. 1999) (“[W]e have particularly criticized the use of a lack of

treatment to reject mental complaints both because mental illness is notoriously

underreported and because ‘it is a questionable practice to chastise one with a

mental impairment for the exercise of poor judgment in seeking rehabilitation.’”)

(quoting Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996)); cf. Fair v.

Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (noting that one type of evidence that

can serve to discredit a plaintiff’s pain testimony is “an unexplained, or

inadequately explained, failure to seek treatment”) (emphasis added).

The ALJ’s second reason – that Ferrando’s treating psychiatrist’s report was

based only upon his subjective complaints – is unsupported by the record. Further,

as the ALJ gave no reason to discredit Ferrando’s “subjective allegations” of his

mental health symptoms other than the inadequate reason that Ferrando failed to

4 seek treatment before 2006, he cannot rely on any defect in those “subjective

allegations” to discredit the treating psychiatrist.2

Crediting the treating psychiatrist’s February 2007 opinion as true, see

Widmark v. Barnhart, 454 F.3d 1063, 1069 (9th Cir. 2006), we reverse the

judgment of the district court and remand for the Commissioner to determine when

Ferrando’s mental impairments became so severe as to render him disabled, which

we would expect to be after April 2005, and before July 27, 2007.

REVERSED and REMANDED.

2 Moreover, mental health professionals frequently rely on the combination of their observations and the patient’s reports of symptoms (as do all doctors); indeed, the examining psychologist’s report credited by the ALJ also relies on these methods. To allow an ALJ to discredit a mental health professional’s opinion solely because it is based to a significant degree on a patient’s “subjective allegations” is to allow an end-run around our rules for evaluating medical opinions for the entire category of psychological disorders.

5

FILED

Ferrando v. Astrue, No. 10-15771 SEP 06 2011 Rawlinson, Circuit Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I concur in the holdings that a subsequent decision does not constitute new

evidence requiring a remand for reconsideration and that Matt Ferrando did not

waive his arguments regarding the merits of Administrative Law Judge (ALJ)

Ramsey’s decision. However, I dissent from the balance of the disposition.

I specifically dissent from the majority’s holding giving controlling weight

to the evaluation of the “treating psychiatrist.” The reason for affording more

weight to a treating medical source is because of the longitudinal history that a

treating physician brings to the evaluation of a patient. In this case, the psychiatrist

had only seen Ferrando once. Our precedent permits the ALJ to give the opinion

less weight in that circumstance. See Holohan v. Massanari, 246 F.3d 1195, 1203

n.2 (9th Cir. 2001) (“This is not to say that a treating physician’s every medical

opinion is necessarily entitled to weight . . . . Under certain circumstances, a

treating physician’s opinion on some matter may be entitled to little if any weight.

This might be the case, for instance, if the treating physician has not seen the

patient long enough to have obtained a longitudinal picture . . .”) (citations and

internal quotation marks omitted).

The majority also rejects the ALJ’s reliance on Ferrando’s failure to seek

1 treatment prior to December, 2006, on the basis that the failure to seek treatment

“is explained, at least in part, by his degenerating condition.” Majority

Disposition, p. 3. Indeed, no such explanation appears in the record. Indeed,

according to the majority, he sought treatment precisely when his condition

worsened, i.e., when he saw the “treating psychiatrist.” Indeed, the record reflects

that he sought treatment to obtain disability benefits rather than because of his

condition. Because the majority rationale is flawed on this point, the psychiatrist’s

reliance on Ferrando’s subjective complaints cannot be salvaged. See Tommasetti

v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (noting that an ALJ may reject a

medical opinion based on discredited self-reporting). Finally, the majority’s

conclusion completely ignores “the presumption of continuing non-disability

arising from the finding of non-disability in Ferrando’s earlier claim. See Chavez

v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988).

Because the ALJ’s decision denying benefits is supported by substantial

evidence and because the majority’s analysis conflicts with our governing

precedent, I respectfully dissent from the reversal and remand.

2